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Politics, the Rule of Law, and the Role of the Crime of Aggression: 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

Tom Dannenbaum
Tom Dannenbaum*
Affiliation:
University College London
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In this essay, I take up two concerns raised by Harold Koh and Todd Buchwald in their critique of the Kampala amendments on aggression: what they term “proxy prosecution” and the notion of aggression as a uniquely political question. I also take issue with the argument in Alain Pellet’s response on attacks by nonstate actors.

These areas of contention notwithstanding, there are important issues on which I think that Koh and Buchwald get it right. In forthcoming work, I argue that the object and purpose of the criminalization of aggression precludes an interpretation of Article 8bis of the Rome Statute that would include humanitarian interventions not authorized by the Security Council. Nonetheless, the failure to make this textually explicit at Kampala was a mistake that the authors are correct to lament. Similarly, they accurately identify the ambiguities in the provisions on the amendments’ entry into force as an entirely avoidable defect that creates unnecessary confusion. These important points notwithstanding, the article takes some misleading positions on the politics of the crime.

Type
Symposium on Koh & Buchwald, “The Crime of Aggression: The United States Perspective”
Information
AJIL Unbound , Volume 109 , 2015 , pp. 235 - 239
Copyright
Copyright © American Society of International Law 2015

References

1 Tom Dannenbaum, Why Aggression is a Crime and Why it Matters (forthcoming).

2 Koh, Harold Hongju & Buchwald, Todd F., The Crime of Aggression: The United States Perspective, 109 AJIL 257, 292 (2015)Google Scholar.

3 East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, para. 28 (June 30); Case of the monetary gold removed from Rome in 1943 (It. v. Fr.), 1954 ICJ Rep. 19, 32 (June 15).

4 See, e.g., Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, para. 61 (Feb. 14); Prosecutor v. Taylor, SCSL-2003-01-I, Decision on Immunity from Jurisdiction, para. 51 (May, 31, 2004).

5 Koh and Buchwald invoke the doctrine to argue against aggression prosecutions in a different context, namely prosecutions in domestic courts of foreign leaders. Koh & Buchwald, supra note 2, at 275.

6 This is not to say that domestic courts lack the discretion to refuse to hear cases implicating foreign states in this way, much as it may be lamentable when they do. See, e.g., R (Noor Khan) v. Secretary of State for Foreign and Commonwealth Affairs [2014] Ewca (Civ) 24.

7 See, e.g., El Masri v. Former Yugoslav Republic of Macedonia, 2012-VI Eur. Ct. H.R. 263; Al-Nashiri v. Poland, Eur. Ct. H.R., App no. 28761/11 (July 24, 2014).

8 Koh & Buchwald, supra note 2, at 260.

9 Id. at 257-258.

10 Consider, for example, the debate about whether the killing and displacement campaign in Darfur constituted genocide. Secretary-General, Report of the International Commission of Inquiry on Violations of International Law and Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60 (Jan. 31, 2005); Prosecutor v. Al Bashir, ICC-02/05-01/09, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (July 12, 2010).

11 Koh & Buchwald, supra note 2, at 270-271.

12 Id. On the general gravity threshold, see Rome Statute of the International Criminal Court art 17(1)(d), July 17, 1998, 2187 Unts.

13 Koh & Buchwald, supra note 2, at 277.

14 Norton-Taylor, Richard & Watt, Nicholas, Families of dead soldiers threaten Blair with court, Guardian, May 4, 2005 Google Scholar.

15 See, e.g., Milovanovic, Selma, Hero’s welcome for Serb accused of war crimes, Al Jazeera, Nov. 12, 2014 Google Scholar; Organization For Security and Co-Operation in Europe, Attitudes Towards War Crimes Issues, ICTY and the National Judiciary 30, 35, 41, 43-45 (2011).

16 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, 1962 ICJ Rep. 151, 163-64 (Mar. 25).

17 On proposed action against the Assad regime in 2013, Koh condemned those asserting the illegality of such an intervention for taking “a crucial fact that marks the Syrian situation—Russia’s persistent, cynical veto—as an absolute bar to lawful action, not as a sign of a systemic dysfunction that bars the U.N. from achieving its stated goals in Syria.” Koh, Harold Hongju, Syria and the Law of Human itarian Intervention (Part II: International Law and the Way Forward), Just Security (Oct. 2, 2013)Google Scholar.

18 Pellet, Alain, Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills, 109 AJIL 557, 562-563 (2015)CrossRefGoogle Scholar.

19 Dannenbaum, supra note 1.

20 For just one recent example of the broad range of commentary on the issue, see Hakimi, Monica, Defensive Force against Non-State Actors: The State of Play, 91 Int’l L. Stud. 1 (2015)Google Scholar.

21 For the ICJ’s use of the definition of aggression, see, for example, Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, para. 195 (June 27). On distinctiveness, see, for example, Eritrea-Ethiopia Claims Commission, Decision Number 7: Guidance Regarding Jus ad Bellum Liability, para. 5 (July 27, 2007). For an illuminating discussion of how to interpret the Icj’s jurisprudence on this issue in a way that preserves and explains the distinction between “armed attack” and the crime of aggression, see Akande, Dapo & Tzanakopolous, Antonios, The International Court of Justice and the Concept of Aggression, in The Crime of Aggression: A Commentary (Kreß, Claus & Barriga, Stefan eds., forthcoming)Google Scholar.