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The International Criminal Court, Aggression, and Other Matters: A Response to Koh and Buchwald

Part of: Koh & Buchwald, “The Crime of Aggression: The United States Perspective”

Published online by Cambridge University Press:  20 January 2017

Nicholas Rostow
Nicholas Rostow*
Affiliation:
Colgate University
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This essay, stimulated by themes discussed by Harold Koh and Todd Buchwald, examines the International Criminal Court (ICC) and the amendment to the 1998 Rome Statute to include the crime of aggression within the ICC’s jurisdiction. The definition adopted in Kampala in 2010 is too long to quote in full but merits careful examination. For example, it states that the “‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to 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.” It then adopts large swaths of UN General Assembly Resolution 3314 (XXIX) of 1974—the definition of aggression—as its own. Commentators recognized problems with the 1974 definition at the time. The post-Kampala Rome Statute purports to achieve objectivity with respect to aggression through removal of everything having to do with context and the totality of the circumstances. These matters surely should be—and must be—of central importance not only to nonparties but also to the parties to the Rome Statute. The fact that they are absent forms the raison d’être of this essay. Because the ICC is a permanent body, able to take jurisdiction of ongoing problems, its actions may have significant implications for world public order.

Type
Symposium on Koh & Buchwald, “The Crime of Aggression: The United States Perspective”
Information
AJIL Unbound , Volume 109 , 2015 , pp. 230 - 234
Copyright
Copyright © American Society of International Law 2015

References

1 Rome Statute of the International Criminal Court art 8bis, July 17, 1998, 2187 Unts.

2 Reisman, W. Michael, Reflections on the Judicialization of the Crime of Aggression, Yale J. Int’l L. Online (Spring 2014)Google Scholar and Koh, Harold Hongju & Buchwald, Todd F., The Crime of Aggression: The United States Perspective, 109 AJIL 257 (2015)Google Scholar note how the Kampala Conference changed the meaning of the 1974 Definition of Aggression with the result that the Kampala version is even more prob lematic than the original.

3 See Julius Stone, Conflict Through Consensus: United Nations Approaches to Aggression (1977).

4 UN Charter arts. 2(4) (prohibition on threat or use of force), 51 (inherent right of self-defense affirmed).

5 It makes and has its own reality. See Hernane Tavares de Sá, The Play Within the Play: The Inside Story of the UN (1966).

6 Wight, Martin, Power Politics 184–85 (by Bull, Hedley & Holbraad, Carsten eds., 2d ed. 1986)Google Scholar.

7 Nonpermanent members of the Security Council such as Germany and Pakistan came to see Security Council Resolution 1373 (2001), the sweeping counter-terrorism resolution adopted after September 11, 2001, and Resolution 1540 (2004), which addressed the problem of the proliferation of weapons of mass destruction and their delivery systems to nonstate actors, as examples of Security Council overreach. See the statements at the Security Council’s open meeting on April 22, 2004. Security Council, Meeting Record, 4950th meeting, UN Doc. S/Pv.4950 (Apr. 22, 2004), and Security Council, Meeting Record, 4950th meeting, Resumption 1, UN Doc. S/Pv.4950 (Resumption 1) (Apr. 22, 2004). See also, Rosand, Eric, The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative? , 28 Fordham Int’l L.J. 542 (2004)Google Scholar.

8 UN Charter arts. 1(1), 39, 24(1).

9 Compare Allain Pellet’s assertions on the subject, Pellet, Alain, Response to Koh and Buchwald´s Article: Don Quixote and Sancho Panza Tilt at Windmills, 109 AJIL 557 (2015)CrossRefGoogle Scholar, with Taft, William H. IV & Buchwald, Todd F., Preemption, Iraq, and International Law, 97 AJIL 557 (2003)Google Scholar and Rostow, Nicholas, Determining the Lawfulness of the 2003 Campaign against Iraq, 34 Isr. Y.B. Hum. Rts. 15 Google Scholar. Legality, of course, is not the same as wisdom.

10 Of the examples one could cite to illuminate the point that objectivity is illusive, the 2005 report on Darfur of the International Committee of Inquiry is notable. The Commission concluded that genocide had not occurred in Darfur because the fact that humani tarian assistance was delivered to the victims of government policy showed a lack of the requisite mens rea on the part of the Sudanese government. The Commission ignored the fact that the Sudanese government had not intended that such assistance be provided and permitted it only under intense international pressure, including the imminence of international peacekeeping missions and visits by UN and other officials. Rather, the Commission devoted most space to urging a UN Security Council referral to the ICC. It achieved its goal. Int’l Comm’n of Inquiry on Darfur, Report to the Secretary-General (Jan. 25, 2005).

11 Security Council, Meeting Record, 4833rd Meeting, UN Doc. S/PV. 4833 (Sep. 24, 2003) (then Secretary-General Kofi Annan said that one size did not fill all cases in matters of transitional justice although he did state that one should not compromise with some crimes such as genocide).

12 Koh & Buchwald, supra note 2, at 267; Reisman, supra note 2, at 69-73.

13 Compare Jia, Bing Bing, The Crime of Aggression as Custom and the Mechanisms for Determining an Act of Aggression, 109 AJIL 569 (2015)Google Scholar with Alain Pellet, supra note 9.