The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council’s Power to Determine Aggression?
MARK S. STEIN
University of Missouri at St. Louis
Indiana International & Comparative Law Review, Vol. 16, No. 1, 2005
One of the most contentious issues surrounding the new International Criminal Court (ICC) is what role the Security Council should play in prosecuting the crime of aggression. Some contend that under the U.N. Charter, the Security Council must determine the existence of an act of aggression as a precondition to any prosecution for the crime of aggression. I argue in this article that the U.N. Charter permits ICC prosecutions for the crime of aggression where the Security Council has not previously determined the existence of an act of aggression. In Part II of this article, I argue that exclusive determination schemes – those in which a Security Council determination of aggression is a precondition to prosecution for the crime of aggression – are in tension with several important Charter-based principles. Such schemes erode the sovereign equality of states, push the Security Council into an inappropriate judicial role, and even threaten the Security Council’s core Article 39 power to determine the existence of aggression in the context of its own decisions. In Part III, I respond to the argument that Article 39 of the U.N. Charter nevertheless mandates an exclusive determination scheme. Article 39 does disable all bodies but the Security Council from determining aggression as a way of triggering the Security Council’s own responsibility and power to suppress aggression. However, Article 39 cannot be interpreted to disable all bodies but the Security Council from determining aggression outside the context of the Security Council’s suppression of aggression. There are several situations in which the Charter provides for the determination of aggression by some body other than the Security Council; Article 39 itself indicates that the Security Council cannot be expected to determine the existence of stale aggression; and the ICJ has in the past determined the existence vel non of aggression, by way of determining the existence vel non of an “armed attack? under Article 51 of the Charter. In Part IV, I offer some of my own proposals, based on the analysis previously given. I advocate a scheme in which the ICC seeks an advisory opinion from the ICJ in aggression cases, but in which failure to obtain such an opinion does not prevent further proceedings. I also propose additional powers for the Security Council in aggression cases, going beyond the Security Council’s power to suspend ICC proceedings under ICC Article 16.
Unfortunately, it may be politically impossible to incorporate into the ICC Statute an independent scheme that leaves the five permanent members of the Security Council with no power to block prosecutions for the crime of aggression. There might have to be some compromise to protect the political interests of the permanent members. Against that eventuality, I offer a compromise proposal in which aggression cases can proceed through preliminary stages without Security Council approval, but in which Council approval is required before there can be a trial. Finally, I make an obvious proposal for resolving the legal issue over the exclusivity of the Security Council’s power to determine aggression: That issue should be resolved by the ICJ in an advisory opinion.