THE BLANK-PROSE CRIME OF AGGRESSION
Abstract
On February l3, 2009, the Special Working Group on the Crime of Aggression (SWGCA), a group set up under the treaty establishing the International Criminal Court (ICC), announced a historic breakthrough. After five years of deliberation, the panel proclaimed it had finally reached agreement on a draft definition of the crime of aggression. The treaty that set up the court, called the Rome Statute, provides for prosecution of that crime, but the framers of the Statute were unable to agree upon a definition. Prosecution of that crime was suspended until the Statute could be amended to include a definition. The Assembly of States Parties will take up the Working Group’s proposed definition at its Review Conference in May 20l0 in Kampala, Uganda.
I suggest in this Article that the proposed definition would constitute a crime in blank prose—one that would run afoul of basic international human rights norms and domestic guarantees of due process in its disregard of the international principle of legality and related U.S. constitutional prohibitions against vague and retroactive criminal punishment. The argument in favor of criminalizing aggression is, in Reinhold Niebuhr’s felicitous phrase, “a logic which derives the possibility of an achievement from its necessity.”
Proponents appear to believe it is necessary that the crime of aggression be defined; therefore, they believe, the crime of aggression is perforce capable of being defined. But necessity, moral or otherwise, does not imply juridical achievability. Repeated efforts to define aggression foundered throughout the twentieth century as continuing political and cultural differences among states have prevented the formation of a consensus. Strong and weak states have long been sharply divided over when the use of force is appropriate and whether their own military and political leaders ought to be prosecuted for such an offense. The high level of specificity needed to impose individual criminal liability—as opposed merely to guide state conduct—has therefore proven unattainable.
The ambiguous definition now under consideration papers over those differences. Prosecution under it would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The proposed definition cannot be reconciled with the Rome Statute’s own requirement that the court apply the law consistently with internationally recognized human rights. The definition’s ambiguity broadens its potential reach to the point that, had it been in effect for the last several decades, every U.S. President since John F. Kennedy, hundreds of U.S. legislators and military leaders, as well as innumerable military and political leaders from other countries could have been subject to prosecution.
These difficulties, I further suggest, would be magnified by including the political roulette wheel that is the U.N. Security Council in the decision to prosecute, as some have urged. Excluding the Council, on the other hand, would create an irresolvable conflict with the Charter. That the United States is not a party to the Rome Statute does not render all this academic: U.S. military and political leaders could still be prosecuted for the crime of aggression even if the United States maintains its position refusing to join. Given enduring political realities and the profound and continuing differences among states concerning when the use of force is appropriate, the effort to criminalize aggression along the proposed lines therefore should be dropped.
Part II of this Article outlines the recurrent failure of efforts to define the concept of aggression and lays out the newly proposed definition. Part III describes the prohibition in international law and U.S. law against the creation of vague and retroactive crimes. Part IV evaluates the proposed definition by applying it to various historical incidents involving the use of force and then by measuring its wording against the retroactivity prohibitions outlined in Part III. Part V assesses proposals concerning the potential role of the Security Council in prosecuting the crime, concluding that the inclusion of the Council in the prosecutorial procedure without Charter amendments would violate retroactivity restrictions, whereas its exclusion would violate the Charter. Part VI analyzes why the concept of aggression has been so difficult to define, suggesting that the impediments have been cultural and political rather than linguistic or legal. Finally, Part VII suggests that it would be in the interest of the United States to oppose adoption of the proposed definition in appropriate proceedings of the Assembly of States Parties of the ICC, since its adoption might impose criminal liability on U.S. leaders even if the United States were to remain a nonparty.
