The crime of aggression
There is support for the inclusion of the crime of aggression in the Court’s jurisdiction, and there is opposition. Part of the debate centers on finding an acceptable definition of the crime of aggression. While arguments to include aggression centre on its extreme gravity and international repercussions, arguments against its inclusion centre on the lack of a sufficiently precise definition. Another part of the debate focused on the role of the Security Council in this regard. Pursuant to Article 39 of the UN Charter, the Security Council "shall determine" the existence of an "act of aggression". Consequently, the issue is inseparably linked to the role of the Security Council in the maintenance of international peace and security. It has been a difficult task to find an acceptable way to reflect in a balanced manner the responsibility of the Security Council, on the one hand, and the judicial independence of the Court, on the other.
The Nürnberg Tribunal condemned a war of aggression in the strongest terms: "To initiate a war of aggression . . . 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." It held individuals accountable for "crimes against peace", defined as the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing…." When the United Nations General Assembly unanimously affirmed the Nürnberg principles in 1946, it affirmed the principle of individual accountability for such crimes.
Early efforts in the United Nations to create an international criminal court were set aside while the international community set out to define aggression. In 1974, the United Nations General Assembly adopted a definition of aggression. It defined aggression as necessarily being the act of a State, and described the specific actions of one State against another which constitute aggression. In its work on the draft Code of Crimes against the Peace and Security of Mankind, the United Nations International Law Commission, echoing the Nürnberg Tribunal, also concluded that individuals could be held accountable for acts of aggression. The Commission indicated the specific conduct for which individuals could be held accountable — initiating, planning, preparing or waging aggression — and that only those individuals in positions of leadership who order or actively participate in the acts could incur responsibility. Its definition focused on individual accountability rather than on the rule of international law which prohibits aggression by a State.
The difficulty, according to some, lies in framing a workable definition of aggression which would apply to a wide range of situations. The definition must be precise enough for individuals to know what acts are prohibited; and it must be general enough to cover a wide variety of acts which may occur in the future, and which may not yet have been conceived of. It must also describe the magnitude of the violation of the prohibition of the use of force contained in Article 2 of the UN Charter that would constitute the crime of aggression for which individuals may be held responsible and punished.
Some States are of the view that excluding aggression would leave a significant gap in the Court’s jurisdiction. Another reason supporting its inclusion is also one of the strongest reasons put forward for creating the Court: to break the cycle of impunity. To hold individuals accountable for war crimes or crimes against humanity while granting impunity to the architects of the conflict in which those crimes occurred is not justifiable. Others also hope that holding individuals responsible for the crime of aggression will act as a deterrent, and that by deterring an aggressor from beginning a conflict that may lead to a conflagration, the attendant war crimes and crimes against humanity might therefore also be prevented. Some also believe that it would be retrogressive to adopt a statute that does not include the crime of aggression 50 years after Nürnberg recognized such conduct as an international crime.
Some of those seeking a way to include aggression have proposed lessening the need for a definition by allowing the determination of an act of aggression to rest with the Security Council. The argument is, if States commit aggression for which individuals can be held accountable, then the Security Council should determine whether an act of aggression has been committed by a State and the Court should determine whether an individual was responsible for that act. This proposal elicits a concern regarding Security Council involvement which is also heard in other contexts: linking the work of the Court to the Security Council may lead to politicization of the Court. Some States are concerned regarding any connection between the Security Council and the Court.
The draft statute contains two options concerning the definition of aggression. One possible definition lists the specific acts for which an individual in a position of responsibility could be held accountable for aggression. The following acts would constitute the crime of aggression under this definition: planning, preparing, ordering, initiating, or carrying out an armed attack, or the use of force, or a war of aggression, or a war in violation of international treaties or agreements, by a State, against the territorial integrity of another State, against the provisions in the UN Charter.
A second possible definition provides a list of acts constituting aggression, which includes the following:
* invasion or attack by the armed forces of a State of the territory of another State, or military occupation, or annexation of territory by the use of force
* bombardment by armed forces of a State against the territory of another State
* the blockade of ports or coasts of a State
* the use of armed forces of a State which are within the territory of another State in violation of the terms of an agreement between those States
* a State allowing its territory to be used by another State for an act of aggression against a third State
* a State sending armed bands, groups, irregulars or mercenaries to carry out grave acts of armed force against another State
Consideration of the definition of aggression will continue at the Conference in Rome.