The interwar years marked the movement in international law towards the prohibition of aggressive war. Yet a notable feature of the 1920s and 1930s, despite suggestions to the contrary at the Nuremberg and Tokyo tribunals, was the absence of legal milestones marking the advance towards the criminalization of aggression. Lloyd George’s proposal to arraign the ex-Kaiser for starting the First World War came to nothing. Resolutions mentioning the ‘international crime’ of aggression, such as the draft Treaty for Mutual Assistance and the Geneva Protocol, were never ratified. And the Kellogg–Briand Pact, while renouncing war ‘as an instrument of national policy’, made no mention at all of aggression, much less individual responsibility for it. Not until the closing stages of the Second World War, with defeat of the Axis powers within sight, did politicians and jurists reconsider the problem of how to deal with enemy leaders, and contemplate the role that a charge of aggression might play in this process.
The Nuremberg judgment concerning the crime against peace failed to provide a persuasive argument that the convictions for this crime were in keeping with the principle nullum crimen sine lege and especially with the prohibition of ex post facto criminal law. For this reason, the contemporary response to the International Military Tribunal judgment in that respect, both in Germany and the United States, was predominantly critical. Vindication for the ‘Nuremberg revolution’ can be achieved only through a consistent application of the newly established principle that preparing for and waging an aggressive war is a criminal offence under international law. The so-called ‘Kampala compromise’ of 2010 is an important step in this direction.
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This article contends that the crime of aggression should not have been codified in the Rome Statute of the International Criminal Court (ICC). The crime of aggression is an outlier in the Rome Statute, and not so unambiguously morally wrong as the humanitarian crimes of war crimes, crimes against humanity and genocide. Aggression is instead a political crime, which yields an abstract harm. The decision by states to use force is itself political, and should be subject to political sanctions rather than criminal ones. It should also be the providence of states, through changes in custom particularly, to determine which uses of force are legitimate and which are not. More than this, the article also disputes that the concept of ‘aggression’ is a good one to distinguish positive and negative uses of force. Whether a use of force is also an incursion into sovereign territory is not as important as whether the use of force is committed for a just purpose or not. The article lists several examples of uses of aggressive force that show that penalization of aggression may be undesirable: humanitarian intervention, anticipatory self-defence, defence against non-state actors, prevention of conflict escalation, and intervention in favour of self-determination or democratic governance. The article thus concludes that uses of force by states should be decriminalized and further evaluated.
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The traditional distinction between international and non-international conflicts in international law has come under increasing strain in recent times. This article explores the phenomenon of ‘quasi-international armed conflicts’ — conflicts which are neither purely international nor internal in nature — and the practical and theoretical challenges these conflicts pose to the task of developing a logical and effective definition of aggression.
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This article examines the amendments to the crime of aggression passed during the International Criminal Court Review Conference from the perspective of some of the human rights organizations engaged in the discussion. The authors find that the Kampala compromise has not realized the worst fears voiced by these civil society organizations before and during the Review Conference. Nonetheless, there is cause for concern as regards the amendment’s effect on the standards of independence and integrity of the ICC, especially its Office of the Prosecutor. States parties have introduced a jurisdictional procedure that allows the United Nations Security Council to have a significant impact on the Court by expanding the reach of Article 16 of the Rome Statute, even though three of the permanent members have failed to ratify the Statute. The authors perceive the risks of increased selectivity and political interference in the decision-making of the Court in the future.
The principle of complementarity undergirds the International Criminal Court’s (ICC) admissibility regime. And yet, in the negotiations leading up to the 2010 Review Conference, delegates did not fully focus on the potential for the addition of the crime of aggression to destabilize the Court’s complementarity regime. The only guidance from the Assembly of States Parties came in the form of two interpretive Understandings that express a subtle preference that the states parties do not incorporate the crime into their domestic codes. If states parties heed this call, which they should, the Court will face situations in which there is incomplete concurrence between the prosecuting state’s domestic law and the ICC Statute given that few states have codified the crime of aggression. Under prevailing interpretations of the principle of complementarity, however, a case would be admissible before the Court if a domestic court were prosecuting atrocity crimes, but not the crime of aggression. This article argues that the Prosecutor should therefore announce in advance of the amendments’ activation the intention to stay his or her hand in the event that genuine domestic prosecutions are going forward on the basis of charges of genocide, crimes against humanity, or war crimes, even if potential domestic aggression charges are not available, are legally barred, or are not forthcoming. The only exception to this general approach should be in cases in which the crime of aggression is the primary or central charge to arise out of a particular situation, such that atrocity crimes are non-existent or largely peripheral. The article thus advocates that the ICC be allowed to exercise a de facto primacy over the crime of aggression vis-à-vis domestic courts, which will retain the ability to take the lead on prosecuting the atrocity crimes. Such a division of labour between the ICC and domestic courts will ensure that to the extent that the crime of aggression is ever prosecuted, it is done in an international, rather than domestic, forum pursuant to a consensus penal definition and a negotiated jurisdictional regime.
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This article tests the Kampala compromise on the aggression amendments to the Rome Statute of the International Criminal Court against the principle of legality, nullum crimen sine lege, requiring criminal law to be reasonably clear and prohibiting its retrospective application. It outlines three possible legality-based challenges to criminalizing aggression: the supposed indeterminacy of the jus ad bellum and the lack of a criminalization under customary international law; the vagueness of the definition of the crime of aggression introduced in Article 8bis; and uncertainty regarding the application of this definition to situations in which the ICC’s jurisdiction over a particular individual arises only ex post facto. The article argues that it is the last of these three challenges, based on retroactivity rather than vagueness, that is most serious. A fundamental ambiguity about the legal nature of the Rome Statute has direct bearing on this issue: it is either substantive in nature, directly creating the crimes it defines, or jurisdictional in nature, in that it merely sets out the subject-matter jurisdiction of the Court over offences which are substantively defined elsewhere, in customary international law. The main practical consequence of this distinction is in the further question whether defendants charged before the Court have the right to challenge the legality of the charges against them on the basis that they do not comport with customary law. The article argues that this ambiguity about the nature of the Rome Statute was if anything only exacerbated in Kampala, discusses the substantive scope of application of Article 8bis as well as the intricate jurisdictional regime introduced by the aggression amendments, and finally turns to the question whether the definition of aggression adopted in Kampala departed from custom.
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Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into force of the amendments in place and absent a much narrower standard for mens rea of the crime, the authors doubt the likelihood of successful prosecution. This conclusion underscores that the Kampala compromise does not in fact restate the law against the use of force binding on states; it underlines the importance of supporting and revitalizing the law that has as its purpose protecting the right to life of millions of people.
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