Academic journal article Case Western Reserve Journal of International Law

The Definition of the Crime of Aggression: Lessons Not-Learned

Academic journal article Case Western Reserve Journal of International Law

The Definition of the Crime of Aggression: Lessons Not-Learned

Article excerpt

Since the establishment of the League of Nations, the international community has sought to provide a legal definition of aggression in international law. These efforts partly succeed with the adoption of General Assembly Resolution 3314 and with the adoption of the crime of aggression within the Statute of the International Criminal Court. This article shows that despite the wealth of experience and legal discussions, efforts undertaken by States Parties to the ICC to provide a suitable definition of the crime of aggression have failed to take into account the lessons of history. It shows that current discussions, in most cases, are a repetition of past negotiations that led to Resolution 3314. The article further points to some of the weaknesses contained in the proposal on the definition of the crime of aggression that will be discussed in the ICC 2010 Review Conference and provides an alternative definition that addresses those weaknesses.

**********

   Certainly an American judge will then say, "Why did not you fellows
   define aggression when drawing up the agreement? It is not a
   clearly defined term of art--we find no body of law that clearly
   defines it." The treaties that I have cited use different language
   and sometimes with quite different meaning, and I am sure that an
   American judge would say that, if you charge a man with making
   aggressive war, it is his privilege to show that the war he made
   was not aggressive, and it is his privilege to show, in defense or
   in mitigation, provocation, threats, economic strangulation, and
   that sort of thing. (1)

   --Justice Robert Jackson, 1945

I. INTRODUCTION

The process of defining aggression in international law has been long and eventful. From the early negotiations in the context of the League of Nations, to the negotiations on the crimes to be pursued by the International Military Tribunal Sitting at Nuremberg, to the General Assembly definition of aggression, to the definition of the crime of aggression in the International Criminal Court (ICC) context, almost a century has gone by.

Two landmark events have indelibly marked this long process: (1) the inclusion in the Nuremberg Tribunal's jurisdiction of crimes against peace, the antecedent of what is known today as the crime of aggression; and (2) the adoption by the General Assembly of Resolution 3314 on the definition of aggression. The process of adopting these two toughly negotiated sets of norms has taught us, or at least should have taught us, a series of lessons that could be extremely useful in the context of the current negotiations on the definition of the crime of aggression that will hopefully be added to the ICC statute at the review conference to be held in 2010.

This article concentrates on the analysis of the substantive elements of the definition of the crime of aggression and will show that history has taught us very little. It argues that, for whatever reason, the Special Working Group on the Crime of Aggression (SWGCA) has chosen a definition that may create more substantive legal problems concerning the definition of the crime of aggression than it will solve. This article further proposes an alternative approach that, once submitted, may solve some of the shortcomings of the current definition proposed by the Chairman of the SWGCA.

II. THE SWGCA DEFINITION OF THE CRIME OF AGGRESSION: BACK TO THE FUTURE

In his February 2009 revision of the Discussion Paper on the Crime of Aggression, the Chairman of the SWGCA proposed the following definition:

1. For the purpose of this Statute, "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. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.