Wednesday, September 9, 2009

Elements of Aggression

(Part 2 of a series on the crime of aggression and the International Criminal Court; Part 1 is here.)

As mentioned in the 1st post in this series, delegates examining the Statute of the International Criminal Court are gradually closing in on a definition of aggression and a list of elements of that crime. These proposals will be presented for adoption at the Review Conference scheduled for Spring 2010 in Kampala, Uganda. The definition of the crime of aggression will be inserted within the ICC Statute as Article 8bis, just following the war crimes provision that now comprises Article 8.

The working definition of aggression in draft Article 8bis, as contained in a Discussion Paper prepared by the Chair of the Special Working Group on the Crime of Aggression and in the group's subsequent reports, is as follows:

Article 8 bis
Crime of aggression
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.

2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

This draft reproduces almost verbatim Article 3 of General Assembly Resolution 3314 (1974), adopted to “guide” the Security Council in determining the occurrence of aggression in the exercise of its Chapter VII power.

In the most recent gathering of states, most delegations indicated that while the draft may not be perfect, they supported the text as a compromise.

The working Elements of Crimes are as follows:
1. The perpetrator planned, prepared, initiated or executed an act of aggression.
2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.
3. The act of aggression — the use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations — was committed.
4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.
5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.
6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

The definition and elements of aggression contain several notable features:

Personal jurisdiction: The crime of aggression is subject to a leadership clause, providing that only those individuals in the top echelons of a military or civilian hierarchy can be prosecuted for the crime of aggression. Foot soldiers would not be subject to such charges, but could be prosecuted pursuant to Article 8 of the ICC Statute for any war crimes committed in connection with the act of aggression. A footnote in the draft text makes clear that more than one person may be criminally liable for a particular act of aggression.

State Action: Proposed definitions of the crime of aggression have always been state-centric, envisioning aggression as a phenomenon of states, formal military organizations, and international borders. Controversially, there is no notion of a crime of aggression that may be committed by non-state actors, such as insurgents or terrorists, or by states against their own citizens. This discounts the diversity of threats to the peace and international security in contemporary international relations.

Forms of responsibility: The crime of aggression will be subject to all the forms of responsibility set forth in Article 25. There had been some discussion about identifying a separate set of forms of responsibility applicable to the crime of aggression only, but this proposal appears to have fallen to the wayside. The provision does allow for prosecution for preparatory acts (planning), although only if an act of aggression is consummated. Thus, the aggression provisions will be of limited use in halting the "steps to war" ex ante, although the Court might conceivably prevent the further escalation of a conflict from a militarized dispute to outright war if an aggression investigation is initiated.

Condition Precedent: Since the early days of the drafting of the ICC Statute, delegates have insisted that no prosecution for the crime of aggression could take place until an act of aggression by a State had occurred. How such a determination should be made remains contentious and will be the subject of a future post.

“Manifest” Violation: The act of aggression by the applicable state must be a manifest violation of the Charter, viewed objectively. Given the formulation of Article 8bis(1) and the reference to the “character, gravity and scale” of the act, “manifest” in this context seems to denote some level of seriousness. (Earlier articulations of this element included the term “flagrant.”) The goal of this threshold element seems to be to preclude the assertion of jurisdiction over “borderline” cases, such as frontier scuffles or coast guard incursions. Some state delegates have insisted that any act of aggression would constitute a “manifest violation” of the U.N. Charter and should give rise to individual criminal responsibility where the other elements of the crime of aggression had been proven. These delegates argue that the list of acts in Article 8bis(2) will ensure that minor incursions across an international border would not trigger the applicability of Article 8bis. The reference to “objective” ensures that the Court would be charged with determining whether the act was a manifest violation of the Charter based upon some sort of reasonable leader standard.

Mens rea: The first element is a conduct element subject to a mens rea of intent. Subsequent circumstance elements, such as the fact that the defendant occupied a leadership position, are subject to a knowledge mental state pursuant to Article 30(3)(“‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”). This formulation seems to exclude a constructive knowledge, or “should have known,” standard.

Knowledge of fact: This mental element, applicable to the 3rd and 5th elements, requires a showing that the defendant was aware of the factual circumstances that rendered the applicable state’s use of force inconsistent vis-à-vis the U.N. Charter (e.g., the occurrence of an armed attack against another state, the lack of Security Council authorization, and the lack of a prior attack by the victim state). Thus, the perpetrator is not required to have knowledge of precise legal doctrine governing uses of force. A similar knowledge-of-fact formulation is contained in the text addressed to war crimes and clarifies that it need not be shown that the defendant undertook a legal evaluation as to the existence of an armed conflict, its classification as international or non-international, or the status of the victims as protected persons.

Actus Reus: A leader may be prosecuted for planning, preparing, initiating or executing one of a number of acts of aggression. The listed acts of aggression reflect their historical origins in Resolution 3314. Absent are acts that might be considered modern forms of aggression, such as cyber attacks or deliberately inflicted environmental degradation.

Exceptions: Some commentators (such as the former Ambassador-At-Large for War Crimes David Scheffer) have proposed that the ICC Statute should include enumerated exclusions to the crime of aggression, such as uses of armed force or deployments of armed forces made pursuant Security Council authorization, the “Uniting for Peace” Resolution (Res. 377 (1950)), or Article 51 of the U.N. Charter (self-defense). This draft does not include such a provision. Nor does it include a provision excepting uses of force that may constitute bona fide humanitarian interventions.

It is anticipated that the proposed Elements of Crimes amendment will be presented at the Review Conference for adoption along with the amendment on to include the crime of aggression. Although some elements remain contentious, delegates are approaching a consensus definition of aggression. Battle lines remain over the preconditions for the exercise of ICC jurisdiction over the crime of aggression. That's the subject of the next post in this series.

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