Aggression, Crime of Aggression, Crime without Punishment

Antonio Remiro Brotóns

June 2005

Antonio Remiro Brotóns is Professor of International Public Law and International Relations at the Autonomous University of Madrid

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© Fundación para las Relaciones Internacionales y el Diálogo Exterior (FRIDE) 2005. Felipe IV, 9 1º Dcha. 28014 Madrid - SPAIN Tel: +34 915 22 25 12 – Fax: +34 915 22 73 01 E-mail: fride@fride.org All FRIDE publications are available on the FRIDE website: www.fride.org The views expressed by the author of this document do not necessarily reflect the opinion of FRIDE.

Antonio Remiro Brotóns Aggression, Crime of Aggression, Crime without Punishment

Abstract

The delay in giving the International Criminal Court jurisdiction over the crime of aggression is the result of disagreement over the Security Council’s role in its prosecution. The permanent Security Council members demand absolute control over judicial action, on the basis of their jurisdiction over international peace and security. However, considering aggression from this perspective must not be confused with those provided by the – clearly judicial – concepts of international responsibility and individual criminal responsibility. If the Council, in the realm of international responsibility, has already seized control over powers not assigned to it in the United Nations Charter, then in the field of criminal responsibility, a prerogative that is previously and compulsorily determined by the Council over judicial action will definitively turn aggression into a crime without punishment.

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Antonio Remiro Brotóns Aggression, Crime of Aggression, Crime without Punishment

TABLE OF CONTENTS

Approach.......................................................................................................1

The Core of Aggression................................................................................3

The Core of Responsibility ..........................................................................5

The Core of Crime......................................................................................11

Outcome ......................................................................................................15

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Aggression, Crime of Aggression, Crime without Punishment 1

Approach 1. ‘Launching a war of aggression’, stated the International Military Tribunal of Nuremberg in 1946, ‘is not only an international crime, it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of all of them’.1

Thus, it is quite natural, more than half a century later, when there has finally been an opportunity to sign a Statute for the creation of an International Criminal Court with jurisdiction over ‘the most serious crimes of concern for the entire international community’,2 that the crime of aggression was one of them.3

Nevertheless, unlike the other crimes (genocide, crimes against humanity, war crimes)4 over which the Court can exercise its jurisdiction since the Statute entered into force (1 July 2002),5 its authority over the crime of aggression has been suspended until approval of a ‘provision in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to it. Such a provision shall be consistent with the relevant provisions of the United Nations Charter’.6

This will not take place tomorrow and it, perhaps, may never ever occur. Articles 121 and 123 of the Statute concerning its amendment and review, are very demanding. They stipulate that when seven years have passed from the time that the Statute entered into force, that is, on 1 July 2009, the United Nations Secretary-General shall convene a conference of the State Parties in which the proposals concerning the crime of aggression will require, in the absence of consensus, a two-thirds majority of votes in favour. The approved amendments will enter into force one year after seven-eighths of the State Parties, among themselves, have deposited their instruments of ratification or adhesion. 1 Judgment of 30 September/1 October 1946. See American Journal of International Law, vol. 41, 1947, p. 172 ff., on p. 186.2 Statute of the ICC (Rome, 18 July 1998), Preamble, para. 9 and art. 5.1. 3 Statute of the ICC, article 5.1, d. 4 Statute of the ICC, article 5.1, a, b and c, 6, 7 and 8. 5 In accordance with article 126.1 of the Statute. 6 Statute of the ICC, article 5.2.

The innocent reader may be surprised to find that, although many years have passed since Nuremberg, the only thing that the authors of the Criminal Court Statute have been able to codify is a deadlock.7 This is all the more surprising when considering that a definition of aggression has existed since 1974 and was adopted by consensus after 20 years of efforts by the United Nations General Assembly.8 The International Law Commission also considered that this definition could have served as a guide when it approved a draft International Criminal Court Statute in 1994.9

The main driving-factor behind the current situation is profound disagreement over the role of the Security Council in prosecuting the crime of aggression. Had it not been for this, the debate and negotiation over the definition (and elements) of the crime and the conditions for exercising jurisdiction over it could have been resolved within a reasonable timeframe.

Hence, while declining to consider the technical problems of regulation, including the attractive possibilities of analysing aggression as a crime of leaders or its eventual commission of responsible non-state subjects (or actors), the aim of this paper focuses on the extraordinary preclusive role of the judicial action assigned to the Security Council and, more precisely, to each of its permanent members, from a deliberate and intentional confusion of the different levels upon which aggression can be analysed.

Such examination is timely, since we have experienced events recently that suggest aggression is not foreign to the practices of countries deemed democratic, practices that can recur over time if, instead of condemned, are tolerated with resignation and, indeed, if they receive public recognition. It is interesting to note that neither the experts appointed by the UN Secretary-General nor the Secretary-General himself, when producing the final copy of his

7 The expression is from S. A. Fernández de Gurmendi, co-ordinator of the working group on Aggression of the ICC Preparatory Committee, ‘An Insider’s View’, in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 176. 8 Res. 3314 (XXIX) of 14 December 1974. 9 Draft ILC Statute, UN GAOR, 49th Session, Supplement, no. 10, p. 72, para. 6, (Doc. A/49/10, 1994).

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report, even mentioned this subject. Indeed, not even the more than one hundred page long High-level Panel report on ‘Threats, Challenges and Change’ mentions the word ‘aggression’ even once.10 In fact, in the Secretary-General’s report the term appears only once and in a different context.11

2. The fact that aggression can unleash action to re-establish peace, demand responsibility of the aggressor state and criminal prosecution of state agents, raises problems with respect to determining the jurisdictions of the bodies and institutions called upon to try these cases and for the relationships maintained among them:

1) action to re-establish peace is, of course, the responsibility of the Security Council and, if it fails, of the United Nations General Assembly;

2) the Council’s jurisdiction to determine the consequences of the aggression in the realm of the international responsibility of states is, at the least, doubtful and, in any case, is concurrent with that of other bodies, particularly the judicial bodies, which have legitimacy to intervene in order to settle differences between states;

3) this jurisdiction is not advocated in any case, when dealing with political bodies, when what is under consideration is the indictment of state agents accused of the crime of aggression, as this function is a mission that corresponds to courts (which could indeed be established by a Security Council resolution);

4) in cases in which judges intervene, albeit in the realm of international state responsibility or in that of individual criminal responsibility of state agents, are they (the judges) conditioned by the determinations made by the Security Council, and if so, to what extent?

5) the two spheres of responsibility, international for the state and criminal for its agents, although closely connected, are autonomous. The Statute of the International Criminal Court makes this distinction clear upon warning that ‘no provision in this Statute relating to individual criminal

10 A More Secure World: A Shared Responsibility, A/59/565, 2 December 2004. 11 K. Annan, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005, 31 March 2005, para. 19.

responsibility shall affect the responsibility of the state in accordance with International Law’.12 This is also confirmed by the Draft on the Responsibility of States for Internationally Wrongful Acts approved by the International Law Commission (2001) when it specifies that its articles ‘will be understood without prejudice to any issue related to individual responsibility under International Law of any person acting on behalf of a state’.13

12 Statute of the ICC, article 25.4. 13 Draft article 58. The text of the draft and the comments accompanying the articles were published with an introduction by the last special rapporteur of the International Law Commission, James Crawford, The ILC’s Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge Univ. Press, 2004. In Spain it has been published by Dykinson: Los artículos de la CDI sobre la Responsabilidad Internacional del Estado. Introducción, Texto y Comentarios, Madrid, 2005 (Introduction and Appendices translated by Luis Fonseca under the supervision of Carlos Espósito). The Draft Articles were recently examined by C. Gutiérrez Espada in El hecho ilícito internacional, Cuadernos Internacionales de la UAM, 5, Dykinson, Madrid, 2005.

Aggression, Crime of Aggression, Crime without Punishment 3

The Core of Aggression

3. Aggression – the act of aggression – is one of the most serious crimes and apparently the most necessary, among the variety of its manifestations referred to in article 39 of the United Nations Charter,14 in order to articulate the formidable measures that Chapter VII puts in the hands of the Security Council to fulfil its responsibility for international peace and security.15 It is understood as a primordial and non exclusive responsibility, because, according to the Charter, the General Assembly may also discuss and make recommendations on all matters related to international peace and security.16 In any case, however, as the International Court of Justice has cautioned: ‘It is only the Security Council which can require enforcement by coercive action against an aggressor.’17

In practice, however, the Security Council has been reluctant to make a formal finding of aggression for situations that appeared to be so, preferring to cultivate ambiguity.18 In the Korean War (1950) the Security Council (Resolution 82-V) set a standard on another situation mentioned in article 39 of the Charter, the breach of the peace, and even this has been brought up on rare occasions. When the member states in 1957 were asked to assist the Council to ‘halt the aggression’ against Egypt by France and Britain during the violent crisis brought about by the nationalisation of the Suez Canal, the alleged aggressors, permanent members of the Council, vetoed the draft resolution.

The fact that the General Assembly in 1974 provided the Council a definition of aggression

14 Article 39 of the Charter asserts that ‘the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’ (emphasis added). 15 Article 24.1 of the Charter. 16 Articles 10 -12 and 14 of the Charter. 17 See Advisory Opinion of 20 July 1962 on Certain Expenses of the United Nations (Article 17.2 of the Charter), ICJ Reports, 1962, p. 163. 18 On the practice of the Security Council, particularly since 1990, see M. A. Cano, Las medidas del Consejo de Seguridad de las Naciones Unidas en el marco del Capítulo VII de la Carta, doctoral thesis presented at the Universidad Juan Carlos I, Madrid, 2004.

meant to guide its actions,19 brought about no changes whatsoever. Although it is possible to find among Council resolutions a few that refer to armed aggression or aggressive acts by certain states, the impression is that these terms appear in the text with a more rhetorical rather than legal significance, as the same text often asserts that such acts are a ‘threat to [international] peace’.20 In this way some of the actions by South Africa and Rhodesia against neighbouring states were determined as acts of aggression or aggressive acts,21 along with the Israeli air raid on the PLO base in Tunisia in 1985.22

19 Resolution 3314 (XXIX) of 14 December 1974. It defines aggression as ‘the use of armed force by a state (or group of states) against the sovereignty, territorial integrity or political independence of another state (without prejudice to questions of recognition or to whether a state is a member of the United Nations), or in any other manner inconsistent with the Charter of the United Nations’ (article 1), considering ‘the first use of armed force by a state not in compliance with the Charter shall constitute prima facie evidence of an act of aggression’ (article 2) and listing as examples some conducts that could be so characterised, such as invasion and armed attack by land, sea or air, even against the merchant or civil fleet; bombardment of the territory of another state, its military occupation, even temporary, or annexation; blockade of ports and coasts; the prolonged presence of armed forces in the territory of other states after the agreement justifying same has expired, or their use in said territory not according to the agreed conditions; the placing of a given territory at the disposal of another state to carry out an act of aggression against a third party; and, lastly, the sending by a state, with its substantial participation, or in its name, of armed bands, groups, irregulars or mercenaries that undertake acts of armed force against another state that are similar to the aforementioned acts (articles 3 and 4). All of them must by themselves or their consequences be of ‘sufficient severity’, which the Security Council will have to consider as being the first of the ‘relevant circumstances’ that allow it in the specific case to not deem as aggression an act that formally seems to be so (article 2). 20 Despite this, these determinations may provide the bases to demand international responsibility from the states to whom such acts are attributed (see below, para. 4 ff.). 21 See, for example, Resolutions 387 and 393 (1976), 411 and 418 (1977), 428 (1978), 527 (1982), 546 (1984) and 577 (1985). 22 Resolution 573 (1985). When four years beforehand Israeli aircraft destroyed Iraq’s nuclear plant in Osirak, then under construction, the Security Council (Resolution 487) condemned the act but did not deem it as ‘aggression’, which for its part, was done by the General Assembly (Resolution 36/27 of 13 November 1981).

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Also the Council’s condemnation of the ‘armed aggression’ on 16 January 1977 against the People’s Republic of Benin by a group of mercenaries23 is worth mentioning, although the intention in that case was to invoke the Council’s authority to back up the thesis that the instigator of aggression does not have to be a state, a thesis that was much debated at the time and is now being revived.

Seemingly very grave situations, such as those caused by Iraq’s actions against Iran as of 1980 and against Kuwait ten years later, came and went with no Council decision determining them as ‘acts of aggression’. In the first case, the Council, after seven years of war, warned that it was confronted with a ‘breach of the peace’ (Resolution 598 of 20 July 1987). In the second, despite a much clearer materialization of facts and a political climate of co-operation between the permanent Council members that arose as a result of the end of the Cold War, it was equally impossible to decide on a formal finding of aggression.24

On 2 August 1990 the Council (Resolution 660) condemned the ‘invasion’ of Kuwait, which had taken place the same day, considering it a ‘breach of the peace’. Four days later it adopted sanctions against Iraq because of its ‘invasion and occupation’ of the emirate (Resolution 661) and a week later it declared the ‘annexation’ null and void (Resolution 662). The term ‘aggression’ appears in Resolution 667 (1990) of 16 September, but it is linked to the failure to respect the immunity of local diplomats and the kidnapping of its personnel in Kuwait. The rhetorical nature of this resolution is confirmed by the fact that neither the French nor the English versions of the resolution mention ‘aggression’, but rather actes agressifs and aggressive acts, respectively. Not even when the Council authorised the members of the Organisation to use all necessary means, in co-operation with the Kuwaiti government, to force the immediate and unconditional withdrawal of Iraq from the emirate (Resolution 678-1990 of 29 November) did it

23 Resolution 405 (1977). 24 Hence with good reason Paz Andrés (‘Réplica: cuestiones de legalidad en las acciones armadas contra Irak’, Revista Española de Derecho Internacional, vol. XLIII, 1991-1, pp. 117-122, on p. 118) asks whether by chance Resolution 3314 (XXIX), which contained the definition of aggression, so laboriously drafted, was already a United Nations museum piece. Indeed, was there (at the time) any issue more propitious for invoking it?

decide to formally qualify the acts. To find a mention of ‘Iraqi aggression’ by the Council one must turn to the statement by its Chairperson, issued somewhat later, on 31 January 1992, which is a more systematic account of the responsibility of the Council to maintain international peace and security.

Against this backdrop, and all things considered, one may ask whether a strict determination of the situations presented to the Security Council is actually necessary to bring about the adoption of the measures required to maintain or restore peace. The answer is no; indeed, experience shows that it is enough to place the action within the framework of Chapter VII of the Charter, without further clarification and, in such circumstances, resort to the most generic case of threats against international peace as grounds for action. This practice facilitates the adoption of measures and avoids problematic political pronouncements that are unnecessary as long as the measures are not determined by them.

The most recent and obvious aggression was carried out against Iraq by the United States together with the United Kingdom and a ‘coalition of willing nations’. The war of aggression that was launched on 20 March 2003 was the result of well-known actions and the direct imputation of the highest political leaders of the states involved, leaves no doubt of this fact. An endless stream of declarations and manifestos around the world have denounced the war. However, in the Security Council the privilege of impunity derived from the privilege of veto given to the permanent members has made any pronouncement illusory or even symbolic. Still it was enough that the majority of Council members refused with their votes to support the policy of force decided on by the United States.25

25 See A. Remiro Brotóns, ‘Guerras del Nuevo Orden: Iraq, la agresión de los democráticos señores’, Cursos de Derecho Internacional y Relaciones Internacionales de Vitoria-Gasteiz 2003, pp. 17-53.

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The Core of Responsibility

4. If we take a more general view of the cases involving permanent members (and their protégés) it is later, as per the international responsibility derived from the acts when, in relation to their imputation or attribution, the determination gains importance. Situations not determined by the Council or those considered as mere ‘threats to peace’ (the most frequent) or ‘breaches of peace’ are alone not enough to attribute a wrongful act and determine responsibility unless the perpetrator can be identified. This seems obvious when dealing with an ‘act of aggression’.

An act of aggression necessarily generates the international responsibility of the aggressor state. This is an enhanced responsibility to the extent that, upon involving a serious violation of an obligation that comes from an imperative norm of International Law, its wrongfulness cannot be excluded under any circumstances (except legitimate self-defence in accordance with the United Nations Charter), nor can its consequences be accepted. The right to invoke this responsibility is recognised, not only for the wronged states, but also for the unwronged ones.26

For twenty years, from 1976 (when Robert Ago was special rapporteur) to 1996 (when the International Law Commission approved a first reading of the draft articles on the Responsibility of States for Internationally Wrongful Acts), violations of this nature were determined as crimes.27 For the Italian academic, a war of aggression was the ‘crime par excellence’.28 But this was not true only for him. The Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (Res. 2625-XXV of the General Assembly of 24 October 1970) had already affirmed that ‘a war of aggression constitutes a crime against peace from which there is responsibility under international law’, a statement copied almost literally in Res. 3314 (XXIX) of 14 December

26 Articles 1, 21, 26, 33.1, 40, 41 and 48 of the Draft Articles on State Responsibility for wrongful international acts approved by the International Law Commission (2001). 27 See Article 19.3 of the Draft Articles (1996). 28 See Fifth Report, Anuario CDI, 1976, vol. II, (1st Part), para. 46.

1974, in the appendix containing the definition of aggression.29

In 1983, Special Rapporteur Riphagen, who had replaced Ago, nevertheless proposed excluding from the draft articles, those acts such as aggression, whose legal consequences were covered in the Charter and over which the United Nations had ‘jurisdiction’. Although Riphagen received some support (McCaffrey, Reuter, Tomuschat), the majority of the Committee members held that the draft should set out, at least in general terms, the legal consequences of the crime.

The final outcome of the debate was that an article (39) was kept in the draft approved on the first reading in 1996, according to which: ‘the legal consequences of an internationally wrongful act of a state … are subject, as appropriate, to the provisions and procedure of the United Nations Charter relating to the maintenance of international peace and security.’

This rule was strongly opposed to by the then Special Rapporteur Gaetano Arangio-Ruiz. This Italian professor reopened the debate on the vis atractiva of the Security Council’s jurisdiction in the maintenance and re-establishment of international peace and security vis-à-vis the international responsibility derived from aggression. For Arangio-Ruiz the rule in article 39 of the draft was unacceptable and superfluous. It was unacceptable, because ‘it would have the effect of subordinating the draft’s provisions on responsibility to the Charter, including the procedures envisaged for maintaining peace’ and, therefore, to Security Council resolutions too, an outcome that would not guarantee either the equality of states or the primacy of law over international relations. It would also be superfluous because article 103 of the Charter already regulates this legal relationship.30

According to the Italian professor’s convincing argument, the Security Council would not have ‘unlimited powers’ and the rights and obligations of states in the domain of international responsibility would not be affected by Chapter VII of the Charter. Everything else could be considered as pertaining to the pacific settlement of

29 Article 5.2 of the appendix. 30 ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement,’ states article 103, ‘their obligations under the present Charter shall prevail’.

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disputes (Chapter VI), under which the powers of the Council take only the form of recommendations. Attempting to get a political organ with limited membership be endowed with judicial and normative powers to try crimes committed by states was, as Arangio-Ruiz stated, ‘contrary to the most elemental principles of a civilised legal order’; hence, the recognition that an ‘important judicial function for the International Court of Justice insofar as an indispensable complement for all preliminary decisions by the General Assembly or the Security Council regarding the possible existence of a crime’.31

But after sharp confrontations with other Committee members, particularly Rosenstock from the United States, the Italian professor resigned and article 39 was maintained, comforted by support (the article, not the professor) from government representatives in the Sixth Commission (Legal Affairs) of the General Assembly, where only Bahrain and Libya came out against it.32

The time that has passed since then has nevertheless served to dilute this provision. Five years later (2001), the draft articles approved on second reading leaned towards a more neutral wording. ‘These articles’, states number 59 and the last of this draft, ‘are without prejudice to the United Nations Charter’.33 The swords are raised and it would be imprudent to assert that the Security Council’s determinations are compulsory and binding for other organs, particularly judicial ones, which are called to decide on the international responsibility of a state that has its origin in an act of aggression.

5. There are measures, such as the requirement to cease and not repeat the wrongful act or even the restitutio in integrum, which pertain to both the arenas of peace and security and that of international responsibility. Yet there are others, such as the numerous forms of reparation (indemnity, satisfaction) or nullity and non-

31 See the criticism of G. Arangio-Ruíz in his article ‘The Federal Analogy and the UN Charter Interpretation: a Critical Issue’, EJIL, 1997, pp. 1-28. 32 See M. J. Aznar, Responsabilidad internacional del Estado y acción del Consejo de Seguridad de las Naciones Unidas, Biblioteca Diplomática Española, M.A.E, Madrid, 2000, pp. 45-70. 33 The tone of this article practically coincides with that of an amendment presented by M. Bennouna in 1996 and rejected by the Committee, with the only difference that the amendment limited the provision of the Charter to ‘the legal consequences of the wrongful international act’.

recognition of the advantages achieved by the offender as a consequence of the crime, which are characteristic of international responsibility and the Security Council has had no qualms about using them when it deemed necessary. Besides maintaining or re-establishing peace, the Council assigns the wrongful acts commission, determines their legal consequences and establishes mechanisms to make them effective. It may even be said that by pronouncing on the effects of the crime in terms of responsibility, the Council has indeed taken into account the types of crimes that have remained ‘hidden’ in its resolutions. Mariano Aznar observes that article 39 of the Charter has become ‘the new open sesame enabling the Security Council to enter the cave housing the new coercive powers that are not clearly explained in Chapter VII of the Charter and which could influence the extent of a state’s international responsibility’.34.

However, although showing no inhibition about entering the scope of international responsibility, the Council has maintained its reluctance to specify the determination of situations that could fall into the category of aggression. In the war with Iraq, for instance, Iran insisted that responsibility for the conflict should be ascertained. For political reasons, the Council did not want to do so by itself. By means of the aforementioned resolution (no. 598 of 28 July 1987) it asked the Secretary-General to examine, in consultation with the parties, the question of ‘entrusting an impartial body’ to investigate said responsibility and to report back to the Council ‘as soon as possible’.

More than four years passed before Secretary-General Pérez de Cuéllar, nearing the end of his term, mentioned – in a report to the Council dated 9 December 1991,35 which had no practical consequences – that ‘Iraq’s aggression against Iran, followed by Iraq’s occupation of Iranian territories during conflict, is a violation of the prohibition on the use of force, which is considered one of the rules of ius cogens’.

According to Iraq (letter dated 22 December), such considerations are outside the powers of the Secretary-General, though at the time Iraq was already under a sanctions regime imposed by the Council following its failed adventure in Kuwait… The history of the Secretary-General’s report

34 M. J. Aznar, Responsabilidad internacional del Estado y acción del Consejo de Seguridad de las Naciones Unidas, Biblioteca Diplomática Española, M.A.E, Madrid, 2000, p. 30. 35 S/23273.

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nevertheless took a turn reminiscent of vaudeville when Giandomenico Pico, the then assistant Secretary-General for political affairs, published his memoirs in which he claimed that the content of Pérez de Cuéllar’s report was due to a pact with Iran, whose mediation was needed to free American hostages held in Lebanon.36 The Iraqi government had naturally long denounced the existence of such a deal, and took care to disseminate in the United Nations the relevant pages by the outspoken retired official.37

The existence of a ‘hidden’ qualification of aggressor state is clearly devised in the Iraq-Kuwait case. The Council did not deem Iraq as an aggressor state, but treated it as such when the time came to draw conclusions.38 The Council explicitly concerned itself with the type, quantity and procedure of the reparation. The main affirmation of Iraq’s responsibility for losses, damages and harm caused to Kuwait or third states, their nationals or businesses, due to the illegal invasion and occupation of the emirate (Resolution 674-1990 of 29 October), reiterated with the provisional cease-fire (Resolution 686-1991 of 2 March), was broadly developed in Resolution 687 (1991) of 3 April, which specified the conditions for the definitive cessation of hostilities, leading to, among other measures, the establishment of a Compensation Fund to cover the direct losses and the damages caused, including environmental damages, and a Commission to manage it all (Resolution 692-1991 of 20 May).39 This Commission has examined millions of claims and awarded indemnities of billions of dollars. In one of its most significant decisions, the Committee even agreed to hold Iraq responsible for its adversaries’ losses during the hostilities…

It is probably appropriate to tone down the nature of these measures by indicating that they were

36 G. Picco, Man Without a Gun. One Diplomat’s Secret Struggle to Free the Hostages, Fight Terrorism and End a War, New York-Toronto, 1999, pp. 118, 150-152, 172, 181, 183, 184, 234, 235, 267, 268. 37 Annex to the letter dated 5 February 2001 from Tarek Aziz, vice-prime minister and acting minister of foreign relations of Iraq, to the Secretary-General, distributed as a Security Council document (S/2001/124 of 7 February). 38 M. J. Aznar, Responsabilidad internacional del Estado y acción del Consejo de Seguridad de las Naciones Unidas, Biblioteca Diplomática Española, M.A.E, Madrid, 2000, p. 149. 39 Resolution 705 (1991) of 15 August set the Fund’s maximum threshold at 30 per cent of the annual value of Iraqi petroleum exports.

expressly accepted by Iraq as they, among others, were presented as sine qua non conditions for the cease fire.40 However, in practice, the scant attention is evident that the Council – and its ad hoc Committee – paid to the general rules governing international responsibility with regard to elements of the wrongful act and the circumstances that exclude illegality, as well as the acceptance of decision-making powers on points that should have been resolved by the parties, and thereby having to turn to judicial or arbitration bodies.41 The Council even deemed it necessary to delimit and impose the international border between Iraq and Kuwait.42

6. Obviously, none of this works when faced with a permanent member of the Security Council or one of its protégés. Is it perhaps necessary to compare the treatment of Iraq as the material aggressor in 1990 with its treatment as the material victim of aggression in 2003? Here is where judicial and arbitration organs and, particularly, the International Court of Justice, are unquestionably considered the most appropriate bodies to decide on the international responsibility arising from the use of force in interstate relations. Moreover, they are the only hope to achieve a fair pronouncement on whether international obligations and rules have been observed, and to establish the consequences of responsibility in the case of non-compliance.

40 Letters from the vice-prime minister and minister of foreign relations of Iraq to the chairman of the Security Council and the UN Secretary-General dated 2 April 1991 (S/22456) and a letter from the chairman of the Security Council to the permanent representative of Iraq on the 11th (S/22485). 41 M. J. Aznar, Responsabilidad internacional del Estado y acción del Consejo de Seguridad de las Naciones Unidas, Biblioteca Diplomática Española, M.A.E, Madrid, 2000, pp. 151-152 and 161 ff. 42 On this interesting point, M. Mendelson and S. Hulton, ‘The Iraq-Kuwait Boundary’, British Yearbook of International Law, 1993, pp. 135-195 (a corrected version was published in French in the Annuaire Français de Droit International, 1993, pp. 178-231). Also, the note from J.P. Quéneudec, ‘La démarcation de la frontière entre l’Irak et le Koweit’, Revue Générale de Droit International Public, 1993, pp. 767-775 ( report from the Demarcation Committee on pp. 827 and ff.) and E. Suy, ‘Le Conseil de Sécurité et la frontière entre l’Iraq et le Koweit’, El Derecho Internacional en un mundo en transformación. Liber Amicorum...E. Jiménez de Aréchaga, Montevideo, 1994. Likewise, H. Brown, ‘The Iraq-Kuwait Boundary Dispute: Historical Background and the UN Decisions of 1992 and 1993’, IBRU Boundary and Security Bulletin (October 1994), pp. 66-80.

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Those who drew up the United Nations Charter were aware of this when they expressly envisaged that the Security Council, by making recommendations on the appropriate procedures for resolving a dispute whose continuation could endanger international peace and security, should take into consideration that ‘legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Court’s Statute’.43

Indeed, the first lawsuit filed with the Court (by the United Kingdom against Albania) concerning the Corfu Channel incidents in 1947 was preceded by a recommendation from the Security Council to do so (Res. 22-1947). On said occasion, the Court issued one of its most famous rulings, duly noting the British Navy’s violation of Albanian sovereignty: the Court ruled in its judgment of 9 April 1949 that it could ‘only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to the most serious abuses and such as cannot, whatever be the present defects in international organisation, find a place in International Law’. The intervention, the Court continued, ‘is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful states, and might easily lead to perverting the administration of international justice itself’.44 The major powers obviously took note of how the independent administration of justice could bring about disagreeable results and from then on not only paid little attention to the Charter’s provocative recommendations,45 but went even further.

Defendant countries have often sought a way to escape these cases, questioning not only the title or grounds for the Court’s jurisdiction in a specific case, but also claiming that such lawsuits are inadmissible when they concern disputes that by their subject matter are considered to be political 43 Article 36.3 of the Charter. 44 ICJ Reports 1949, p. 35. 45 One of the scant assumptions on which a recommendation of this type arises is warned of in Resolution 395 (1976) in which the Security Council recommends that the Court’s efforts to resolve the controversy over delimitation of the continental shelf of the Aegean Sea between Greece and Turkey should continue to be taken into account. Greece had put the question in parallel before the Security Council and before the Court, which in the judgment dated 19 December 1978 declared that it did not have competence to recognise the Greek suit, as Turkey had not consented to its jurisdiction.

and should thus, in their opinion, always be passed on to the Security Council. If this doctrine were recognised, the permanent members of the Council and their protégés could then consider themselves free of any decisions to which they did not consent.

The International Court of Justice has nevertheless rejected the existence of disputes not subject to justice due to their supposed political nature, affirming – under the authority of its jurisdiction – the appropriateness of its exercise. The Court has neither allowed exceptions to the admissibility of a suit based on such arguments, even when the matter concerned the use of force; nor has it admitted a Council domaine reservé in such cases; on the contrary, it has considered the possibility that its responsibilities– trying legal disputes – be developed in parallel with the Council’s political function of maintaining peace. Beyond this, the Court has considered that its intervention could have an added beneficial effect of eliminating threats to peace or overcoming the harmful consequences of breaching it. In this regard, it has even preventively ordered, at the request of a party involved, the suspension of hostilities and armed actions.

7. There have been a number of very unique examples of recourse to the International Court of Justice by states that considered themselves to be victims of aggression. The Court has analysed the grounds of its jurisdiction – when these have been contested by defendants – and the admissibility of the suit filed, without causing the Security Council’s knowledge of the case, in accordance with its jurisdiction in the scope of collective security, to influence the case’s removal from the list.

Twenty years ago, Nicaragua’s suit (9 April 1984) against the United States was a milestone, particularly because the defendant was a permanent member of the Security Council, which clamoured for respect of said organ’s jurisdictions on the one hand, but on the other, was determined to ensure that these powers were not exercised so that its own interventionist and coercive policies avoided being subjected, not so much to sentencing, but even to debate. The Court did not enter into this game. To begin with, on 10 May 1984, it ordered preventive measures indicating that the United States should immediately cease all actions whose aim was to restrict entry to and exit from Nicaraguan ports, particularly the placing of mines, and urged it to respect Nicaragua’s right to sovereignty and independence, and not compromise it with military and paramilitary

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activities forbidden by the principles of International Law. The Court later affirmed its authority, deemed the lawsuit admissible and the exercise of its jurisdiction appropriate (judgment of 26 November 1984). Finally, the Court ruled that the defendant had infringed a number of fundamental principles of International Law (judgment of 27 June 1986). Only Nicaragua’s withdrawal of its lawsuit to determine the due reparation (12 September 1991) prevented a judgment that would have closed the circle on the United States’ responsibility, at least in terms of a legal sentence.

More recently, the way the Security Council has for years handled the wretched crisis in the Democratic Republic of the Congo is also noteworthy. Dozens of resolutions have been passed and there is a peacekeeping operation (MONUC) on the ground,46 while the judicial proceedings initiated by a claim of that country against Uganda and Rwanda, ‘on account of acts of armed aggression perpetrated … in flagrant violation of the United Nations Charter’47 continue.

We could make the list even longer upon considering the Court’s pronouncement in the case of Oil Platforms (Islamic Republic of Iran vs. the United States),48 the suit also by the Islamic

46 Taking Res. 1234 (1999) of 9 April as a departure point and until 20 May 2005, 25 resolutions had been adopted by the Security Council, the last (Res. 1596) on 18 April of this year. 47 The suits were filed on 23 June 1999, also against Burundi. The Democratic Republic of the Congo withdrew in 2001 from its suits against Rwanda and Burundi (ICJ, Orders of 30 January). Regarding Uganda, the Court ordered the preventive measures sought by the D. R. Congo (Order of 1 July 2000). Later, on 28 May 2002, the D. R. Congo filed a new suit against Rwanda, this time for ‘massive grave and flagrant violations of human rights and international humanitarian law’. 48 The suit was filed by the Islamic Republic of Iran on 2 November 1992 based on the ‘attack and destruction of three offshore oil production complexes … by several warships of the United States Navy on 19 October 1987 and 18 April 1988’. The counter-memorial by the United States included a counter-claim for ‘the actions by Iran in the Persian Gulf during 1987-1988’, which comprised operations of mining and other attacks against ships flying the United States flag. These acts by one or the other party took place during the ‘tanker war’ between 1984 and 1988, as part of the armed conflict between Iran and Iraq that began in 1980. The Court’s judgment was handed down 11 years later (6 November 2003) and had to restrict its focal point to accommodate the limited jurisdictional base (a friendship treaty, trade

Republic of Iran against the United States over the Aerial Incident of 3 July 1988 and Nicaragua’s suits against Honduras and Costa Rica for Border and Transborder Armed Actions, which did not proceed due to the plaintiff’s withdrawal of the case,49 or the suits by Yugoslavia (today’s Serbia-Montenegro) against the NATO countries that bombed its territory in 1999, which was turned down because the Court did not find grounds for its jurisdiction.50

8. In practical terms the only limit the Court has placed on the exercise of its power has been revealed in its adoption of preventive measures requested by a party when, beyond its own judgement of appropriateness, it has deemed that the requested measures might conflict with orders emanating from Council resolutions.

In such situations the Council, most evidently in the Lockerbie case, may be suspected of taking on functions of a judicial nature that are incompatible with its nature as a political body. In this case, the Security Council endorsed the claims on Libya put forth by the United States and the United Kingdom in their joint Declaration of 27 November 1991, as manifested, among other examples in: 1) the surrender of the two Libyan citizens accused of placing the bomb on board the Boeing 747 used in

and consular relations, dated 1955) which had allowed it to enter in depth, once the preliminary exceptions put forward by the United States were disregarded (judgment of 12 December 1996). The Court, which rejected the counter-claim by the United States, declared that the actions against the Iranian oil platforms could not be justified in light of international law regarding the use of force. 49 The Iranian suit was filed in 1989, and in 1996 the plaintiff withdrew it. The Nicaraguan suits were filed in 1986, once the judgment against the United States over its military and paramilitary actions in and against Nicaragua had been handed down. The plaintiff withdrew its suit against Costa Rica in 1987 and its suit against Honduras in 1992 (in this case the Court had already affirmed its jurisdiction and the admissibility of the suit, which were contested by Honduras – judgment of 20 December 1988). 50 Yugoslavia’s lawsuits concerning the legality of use of force were filed on 29 April 1999 against Belgium, Canada, France, Germany, Great Britain, Italy, the Netherlands, Portugal, Spain and the United States, as the grounds upon which to base it were most evident. Regarding the other suits, the doubts on the grounds led to denial of adoption of the preventive measures requested by the plaintiff (Orders of 2 June 1999). The Court later considered that also with respect to the latter it lacked jurisdiction (judgment of 15 December 2004).

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Pan Am flight 103 – the bomb whose explosion when flying over Lockerbie (Scotland) on 21 December 1988 destroyed the aircraft and caused the death of 270 people; and 2) the assumption of responsibility for their acts, with the corresponding payment of indemnities. While in Resolution 731 of 21 January 1992 the Council limited itself to urging Libyan authorities to respond fully and effectively to the requests ‘in order to contribute to the elimination of international terrorism’, in Resolution 748 (1992) of 31 March, the Council decided, this time under Chapter VII of the Charter, that Libya had to yield within two weeks to the Anglo-American demands and demonstrate its rejection of terrorism by specific acts should it wish to avoid being applied the sanctions envisaged in that same resolution.

This case nevertheless serves as a good example upon examining the Court’s performance of its function in relation to the Security Council, for it was not in vain that Libya on 3 March 1992 filed suits against both the United Kingdom and the United States, seeking to transfer the dispute to the interpretation or application of the Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts Against the Security of Civil Aviation. Libya considered that the defendants had breached several articles of the Convention and asked the Court for a pronouncement to that end, and also to declare that the defendants were ‘legally obliged to respect Libya’s right that the application of this Convention not be discarded by means which would in any case contradict the principles of the Charter and General International Law of an imperative nature that prohibit the use of force and violation of the sovereignty, territorial integrity and sovereign equality of states and their political independence’.

While Libya was subject to the sanctions imposed by the Security Council in Resolution 748 (1992), extended a year and a half later (Resolution 883 of 11 November 1993), the United Kingdom and the United States sought to remove the Court from the case, claiming that the resolutions supported its allegations of the Court’s lack of jurisdiction, the inadmissibility of the suit and its lack of objective. Although the Montreal Convention had granted Libya the rights it claimed, they – said the British and the Americans – could not be exercised due to the prevalence of Resolutions 748 (1992) and 883 (1993), according to articles 24 and 103 of the Charter. These resolutions resulted in a serious disagreement between Libya and the Security

Council, a disagreement that was not envisioned by the Montreal Convention.

This argument was sufficient for the Court to abstain from adopting the preventive measures requested by Libya51 in its suit of 3 March, though it did not reject studying whether the case came under the jurisdiction of the Court. In the judgments of 27 February 1998, the Court rejected the preliminary exceptions on the basis of the absence of its jurisdiction and the inadmissibility of the suit, and reserved its opinion on the exception regarding the objective loss of the Libyan suits, as said exception was deemed by the Court to not be of an exclusively preliminary nature, but rather, that it maintained a ‘close connection’ to the underlying matter.52

The withdrawal of the suits, due to a joint request made by the parties (letters of 9 September 2003 and an order from the Court’s president on the 10th) as a result of an extrajudicial settlement has left us

51 The Orders of 14 April 1992, adopted by 11 votes to five. When Resolution 748 (1992) of 31 March was approved, the oral hearings before the Court had ended three days beforehand and the judges had begun the process of deliberation (ICJ Reports 1992, pp. 3 and ff., 114 and ff.). On these Orders and the relations between the Security Council and the International Court of Justice, J.M. Sorel ‘Les Ordonnances de la Cour…’, Revue Générale de Droit International Public, 1993, pp. 689-726; V. Gowlland-Debbas, ‘The Relationship Between the ICJ and the Security Council in the Light of the Lockerbie Case’, American Journal of International Law, 1994, pp. 643-677; R. St. J. MacDonald, ‘The ICJ and the Security Council of the United Nations’, El Derecho Internacional en un Mundo en Transformación. Liber Amicorum…E. Jiménez de Aréchaga, cit.; L. Condorelli, ‘La Corte Internazionale de Giustizia e gli organi politici delle Nazioni Unite’…1994, pp. 897-921. More recently, B. Martenczuk, ‘The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?’, European Journal of International Law, 1999, pp. 517 and ff. In Spain, M.P. Andrés, ‘¿De maximis con curat praetor...? El Consejo de Seguridad y el TIJ en el asunto Lockerbie’, Revista Española de Derecho Internacional, 1992, pp. 327-350; E. Orihuela, ‘La actuación del Consejo de Seguridad de la ONU en el asunto Lockerbie: paradigma de ‘incontrolable’ abuso de poder’, pp. 395-415; A. Remiro Brotóns, Desvertebración del Derecho Internacional en la sociedad globalizada’, Cursos Euromediterráneos Bancaja de Derecho Internacional, vol. V, 2001, pp. 229-234. 52 Judgments of 28 February 1998 on the Lockerbie case (Libyan Arab Jamahiriya vs. Great Britain and Libyan Arab Jamahiriya vs. the United States), ICJ Reports1998.

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without sentencing on points of great interest – such as the incompatibility of the parties’ rights under the Montreal Convention and their obligations according to the aforementioned Security Council resolutions, the legal value of those resolutions under articles 25 and 103 of the Charter and the consideration, to that end, of their conformity with (the principles and aims of) the Charter (article 24.2). Indeed, considering the slow pace of the proceedings, still in the oral phase at the date of withdrawal, the parties (and the judges) seemed in no hurry to resolve the uncertainties.

In any case, regarding the affirmation of the Court’s jurisdiction and the suit’s admissibility, the judgments of 27 February 1998 were very clear and direct: if the Court did have jurisdiction and the suit was admissible on the date it was filed, subsequent events, including the Security Council resolutions, could not be taken into consideration in order to change the conclusions it had reached. The critical, relevant and decisive date was always the day the suit was filed. The judgment thus rejects any effect of Resolutions 748 (1992) and 883 (1993) adopted under Chapter VII of the Charter, regarding the Court’s jurisdiction and the suit’s admissibility, as they were dated after it was filed; regarding Resolution 731 (1992), which was adopted earlier, ‘it could not form a legal impediment to the admissibility’, the Court states, ‘because it was a mere recommendation with no binding effect’.

It is naturally beyond the Court’s reach to prevent the Council from freely continuing to interpret its powers and from treading on its judicial territory, which does not conform to its nature. The orders to hand over presumed terrorists to the countries that request them, often from Council members in the wake of Lockerbie, are quite illustrative in this respect. But that is another question that reveals the dangers of a perverse development of the state of International Law.53

53 See Antonio Remiro Brotóns, ‘Terrorismo, mantenimiento de la paz y Nuevo Orden’, Revista Española de Derecho Internacional, LIII, 2002, pp. 125-171.

The Core of Crime

9. The draft statute of the International Criminal Court presented at the Rome Conference included the crime of aggression, leaving its definition open, but not the Court’s dependence on the Security Council’s previous determinations of acts of aggression in the framework of its jurisdiction to maintain international peace and security.54

There was radical disagreement among those who, while satisfied on this point, also sought a restrictive definition, and others who, on the contrary, called for a broad definition and freedom for the Court in its prosecution, independent of decisions made by the Council, by placing its role in another order. Some, whose desideratum was to cross aggression off the list of crimes under the Court’s jurisdiction,55 used the situation to disseminate a fear of infection, which would have been fatal for the Statute. This was done so effectively that even respectable NGOs accepted, perhaps tacitly, the exclusion.56 Two days before the Conference ended, the crime of aggression was dropped from the Statute, to be agonizingly recovered at the last minute under the formula of article 5,57 due to vigorous efforts by some European and developing countries.

Given the precedents and objectives of the Statute, it would have been incongruous and unbearable for the Court’s credibility to exclude the supreme crime, and all the more so when its prosecution by national jurisdictions is much more problematic. The International Law Commission affirmed in 1994 that its exclusion would be regressive.58 At the Rome Conference, Belgium stressed the illogical stance of those who accepted that the Court should try those

54 Article 23.2 (ILC Draft Statute, UN GAOR, 49th

Session, Supplement. No. 10, pp. 72, 84). 55 For example, the United States, Israel and Mexico expressed this line (U.N. Doc. A/CONF. 183/C.1/SR.6 (sixth session of 18 June 1998, pp. 5, 6, 11 and 12). 56 See P. Dascalopoulou-Livada, ‘Aggression and the ICC: Views on Certain Ideas and their Potential for a Solution’, in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, pp. 79-85. 57 See above, para. 1. 58 Draft ILC Statute, UN GAOR, 49th Session, Supplement. No. 10, p. 72 (Doc. A/49/10, 1994).

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responsible for war crimes, but not for the crime that often caused them.59

To counter the suspicion that the Statute was serving the aesthetics of principles, resubmitting its application ad calendas graecas, the Rome Conference expressly charged the Preparatory Commission with the task of drawing up provisional proposals on aggression.60

Yet when the Assembly of State Parties first met in September 2002, it was once again at the starting point, albeit this time with more documentation, some of it repetitive, and a jumbled experience of progressively mitigated, though not entirely absent, fear and mistrust.

Given that some sought to suppress the debate, dropping it until the Assembly of State Parties decided to revive it, or to have it fade away slowly in the Sixth Committee (Legal Affairs) of the United Nations General Assembly, a decision was made to set up a special working group, open to all members of the United Nations and Specialised Agencies, with the aim of ensuring that the issue remained a subject under consideration in the annual sessions of the Assembly and even at informal intervals when there were governments willing to finance them.61

On 20 November 2005 the Criminal Court’s web page stated that its last update was on 10 September 2003, and incorporated the last of the numerous definition proposals put forth, which had no determined outcome.62

10. The International Law Commission, which included the crime of aggression among those under the Court’s jurisdiction in its 1994 draft statute,63 avoided providing a definition for it. Considering that there was an authoritative definition in the appendix of Resolution 3314 (XXIX), adopted by consensus after a lengthy process of debate by an organ as representative as

59 U.N. Doc. A/CONF. 183/C.1/SR.6 (sixth session of 18 June 1998, p. 9). 60 Resolution F, number 7, of the Final Act of the Rome Conference. 61 See G. Nesi, ‘An Outsider’s View’, in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression, Aldershot, 2004, pp. 172-173. 62 Cuban proposal on definition of the crime of aggression and the conditions for exercising its jurisdiction (ICC-ASP /2/SWGCA/DP.1, of 4 September 2003 (revised version of ICC-ASP/1/L.4). 63 Article 20.b of the draft.

the General Assembly, it was sufficient enough to specify the crime and reaffirm those acts that had already been qualified in relation to the subjects that could be responsible for them.

Many proposals have moved along this line. Some have sought to expand the discretionary aspect of the Criminal Court by using the more generic terms of article 1 of the Assembly definition (form fitted to article 2.4 of the United Nations Charter),64 while others have practically copied the entire definition, including the indicative list of acts of aggression that figures in article 3,65 and even broadened it.66

However, the same states that tried to impose an absolute control by the Security Council over the actions of the Criminal Court are also the ones that proposed definitions of the crime that tend to substantially limit the acts that can be incriminated. Their initiatives thus do not seem to be geared towards a definition of the crime but rather towards a redefinition of aggression in terms of prosecution and criminal responsibility.

The tensions were already evident in the preparatory work of the International Law Commission.67 In 1991 the draft Code of Crimes against the Peace and Security of Mankind included an article that was an almost exact replicate of Resolution 3314 (XXIX). Three years later, the Commission omitted a definition in the draft Statute of the Criminal Court but explained in its commentary to the text that said resolution could be used as some sort of guide.68 Finally, in

64 As in a proposal by Bosnia and Herzegovina, New Zealand and Romania (PCNICC/2001/WGCA/DP.2). 65 As in a proposal by Egypt and Italy of 21 February 1997, before the Rome Conference. 66 As in the so-called Arab proposal at the Rome Conference (UN Doc. A/CONF.183/C.1/L.56 and Corr. 1). Soon afterward in the Preparatory Committee of the Criminal Court, proposal by Bahrain, Iraq, Lebanon, Libya, Oman, Sudan, Syria and Yemen (PCNICC/1999/DP.11). 67 V. M. D. Bollo, Derecho Internacional Penal. Estudio de los crímenes internacionales y de las técnicas para su represión, Servicio Editorial de la Universidad del País Vasco, Bilbao, 2004, pp. 281-283. 68 After indicating that ‘given the provisions of Article 2(4) of the Charter of the United Nations’ Resolution 3314 (XXIX) of the General Assembly, which incorporated in its appendix a definition of aggression, ‘offers some guidance’, it observes that ‘a court must, today, be in a better position to define the common law crime of aggression than the Nuremberg Tribunal was in 1946’ (Draft ILC Statute, UN GAOR, 49th Session,

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1996, when the Committee approved, on second reading, the draft Code of Crimes, it abandoned Resolution 3314 (XXIX) and adopted the formulation of the Charter of the Nuremberg International Military Tribunal.69 Thus, ‘an individual who, as leader or organiser, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a state…’70 shall be responsible for the crime of aggression.

This restrictive option limited to war of aggression, now formalised by Russia,71 did not seem to upset the other permanent members of the Security Council. In its favour was that the crime against peace pursued in Nuremberg (and Tokyo) is the only one that, according to its advocates, can be claimed to be of a common law nature and opposable to erga omnes. However, it ignores the evolution of international norms on the prohibition of threats and the use of force according to article 2.4 of the United Nations Charter and deems irrelevant, from the standpoint of individual criminal responsibility, the definition of aggression that was agreed to by consensus in 1974 (Res. 3314-XXIX), and to which a majority of countries insistently base their proposals.

Another restrictive option was championed by Germany, which sought to limit the crime to an armed attack whose aim is military occupation or territorial annexation.72 From this standpoint, the destruction of a country from a distance or from the air without any intention to set foot in it would not lead to criminal responsibility.73

Supplement No. 10, p. 72, para. 6, UN Doc. A/49/10, 1994). 69 Article 6 of the IMT Statute (appendix to the London Agreement of 8 August 1945). The Statute does not, for its part, define what it understood as ‘war of aggression’, which did not prevent it from pursuing and condemning those it considered responsible. 70 Article 16 of the draft. Emphasis added. Nor does the Committee define what is ‘war of aggression’, arguing that it is ‘outside the scope of this Code’. 71 PCNICC/1999/DP.12. 72 PCNICC/1999/DP.13. Inspired by the assumption envisaged in letter a) of article 3 of the definition of aggression of the General Assembly, an article which extends until letter g) the list of acts which, while not exhaustive, constitute aggression (appendix to Res. 3314-XXIX). 73 V. L. Condorelli, ‘Conclusions générales’, in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression, Aldershot, 2004,

Coincidentally, this proposal was formulated a few months before the aerial bombing of Serbia by NATO member countries, including Germany. Subsequently, in November 2000, Germany sustained that the crime of aggression presupposed a large scale armed attack against the territorial integrity of another state, explicitly unjustified in International Law.74 This was meant to underscore the importance or seriousness of the attack and its doubtless illegality. The two classifications were also present in proposals from other states.75

The ideal of a threshold according to which aggression becomes a crime is by itself reasonable. All the mentioned proposals can be reintroduced as manifestations of this ideal.76 At the same time, they may also seem redundant depending on the importance and seriousness of the aggression:

1) it is implicit in article 39 of the United Nations Charter, in which aggression is mentioned after the breach of peace;

2) it is expressed in Resolution 3314 (XXIX) according to which ‘the fact that the acts concerned or their consequences are not of sufficient severity’ is one of the relevant circumstances by which the Security Council may ‘conclude a determination that an act of aggression has been committed would not be justified’;77 and

3) it is likewise expressed in the Statute of the Criminal Court in its affirmation of the Court’s jurisdiction over the most serious crimes.78

Is it now the intention to suggest that only the most serious acts of the most serious crimes should be submitted to the Court’s jurisdiction? Or rather, in a somewhat different way, that there

p. 158. Also, H.P. Kaul, ‘The Crime of Aggression: Definitional Options for the Way Forward’, p. 100. 74 PCNICC/2000/WGCA/DP.4. 75 This idea of the use of armed force ‘in manifest violation of the United Nations Charter’ is also found in the proposal by Greece and Portugal (PCNICC/2000/WGCA/DP. 5). 76 In this sense, see PCNICC/2002/WGCA/RT.1, of 1 April 2002, document presented by the coordinator of the working group on Aggression of the Preparatory Commission of the ICC, Silvia A. Fernández de Gurmendi. 77 Article 2 of the annex to Res. 3314 (XXIX). (emphasis added). 78 Preamble, para. 9 and articles 1 and 5 of the Statute.

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are uses of force prohibited by International Law that can be determined as aggression only when they overstep a given threshold of seriousness, as the International Court of Justice once declared in relation to the military and paramilitary activities in and against Nicaragua? If this is the case, then: 1) aggression is the premise to a crime; 2) if there is aggression, there is crime; and 3) the definition of the crime requires a determination of who is linked to the aggression, how and to what degree.

11. The most tricky question (and most controversial answer) concerns the authority of the judges of the Criminal Court to establish that an act of aggression has been committed. While some argue in favour of this authority, based on the independent exercise of the judicial function, others – particularly the spokespersons of the permanent members of the Security Council – hold that the exercise of said function inherently depends on the Council’s prior determination of the acts.

The first thing which must be noted is that the Court’s Statute only claims that the provision upholding the crime of aggression and the conditions for exercising the Court’s authority should be ‘consistent with the relevant provisions of the United Nations Charter’.79 Even if the Statute was silent, this would still be true by virtue of the prevalence of the Charter’s obligations in case of conflict with other conventional obligations.80 The International Court of Justice had to assume this fact in the exercise of its jurisdiction in cases where one of its decisions (concerning the adoption of provisional measures) might conflict with mandatory orders from the Security Council acting under Chapter VII of the Charter.81 The same could happen to the Criminal Court when exercising its jurisdiction over the crime of aggression. The Statute in force recognises that the Security Council assumes a number of formidable powers, such as the one to request (actually, to order) the Court, by means of a resolution approved under Chapter VII of the Charter, to suspend an investigation or judgment for a renewable period of twelve months.82 Indeed, this power – so critical because of the

79 Article 5.2 of the ICC Statute. 80 Article 103 of the United Nations Charter. 81 See above, para. 7. 82 Article 16 of the ICC Statute.

political dependence it imposes on the Court83 – has already been used by the Council in an abusive manner.84

Extending the powers of the Council in relation to the activities of the Court is possible from the start, but such extension is not mandated by the Statute. The compatibility of the Charter with a future provision on the exercise of its jurisdiction over the crime of aggression does not require a prior Council determination as a sine qua non requisite, nor is it required by the Statute of the International Court of Justice when the latter exercises its jurisdiction, often parallel to the Council, over cases involving the use of force.85

It is absolutely inappropriate to sustain the Security Council’s exclusive authority to qualify aggression prior to judicial prosecution of the crime, on the basis that there is no other solution that conforms with the Statute of the Criminal Court. On the other hand, introducing such a condition, bearing in mind considerations of opportunity, would practically ruin the opportunities to prosecute the crime.86

83 This was the reason India invoked to justify its nay vote on the Statute: ‘The powers granted to the Council appear to be the seed of destruction of the International Criminal Court’ (press release L/ROM/21, of 17 July 1998). 84 Resolutions 1422 (2002) and 1487 (2003), ordering the exclusion of all preliminary investigation or criminal proceeding against nationals of states not party to the Statute who participate in peacekeeping operations authorised by the Council. Moreover, Resolution 1497 (2003), authorising the establishment of a multinational force in Liberia, decided that the personnel contributed by a state not party to the ICC Statute will be subject to the exclusive jurisdiction of that state unless it has expressly renounced said exclusive jurisdiction. All these resolutions, backed by the United States, run against the spirit and the letter of article 16 of the Statute (which the Council says applies), for the enormous power of ordering suspension is limited to investigations and judgments that have ‘already begun’. It is good news that as a consequence of the political wear produced by the aggression in Iraq and the violations of International Humanitarian Law during and after the war, the United States was obliged to abandon in 2004 its plan to renew the suspension orders that expired on 1 July, as it could not assure the required majority of Council votes. 85 See above, para. 6. 86 V. G. Gaja, ‘The Respective Roles of the ICC and the Security Council in Determining the Existence of an Aggression’, in M. Politi and G. Nesi (eds), The

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Of course, the Council’s declaration that certain acts do constitute aggression will clear the way for the Court, while preserving its authority to reconsider such a determination on its own. Also, a Council declaration to the contrary would make it very difficult to criminally prosecute those individuals who are allegedly responsible for the acts. However, if the former is highly unlikely, the latter is quite implausible. The Council is a political organ that votes on political resolutions bearing in mind considerations which, if sustained by a judge, could perhaps be deemed as a breach of a legal obligation. Exercising its primordial responsibility to maintain or re-establish peace does not require the Council to have a precise determination of the situations set out in article 39 of the Charter. As for the effects of conditioning the actions of the Criminal Court in relation to the crime of aggression, it would at most be fitting to postulate prior Council action under Chapter VII. The precaution of the Statute of the Criminal Court on the use of its jurisdiction when the Council, acting in this area, refers to the prosecution of a situation in which it appears that one or more of the crimes covered by the Statute87 have been committed, could be extended to include the crime of aggression without requiring that the Council provide a specific qualification of said situation. Such a lack of determination usually broadens the consensual basis of its resolutions without limiting the potential range of its actions.

Numerous proposals of commitment have been made in the search for agreement between those who defend the absolute independence of the Criminal Court in the exercise of its jurisdiction88 and those who back the absolute dependence of the Security Council in the determination of aggression.89 These proposals are launched from the obligation of the Criminal Court to request the Security Council to formally deem the acts as aggression. In the event that the Council does not make a declaration within the time period as specified by the Statute, the Court must

International Criminal Court and the Crime of Aggression, Aldershot, 2004, p. 124. 87 Article 13.b of the ICC Statute. 88 Thus, Cuba (ICC-ASP /2/SWGCA/DP.1), which indicates that the Security Council’s lack of determination over the existence of an act of aggression will not prevent exercise of the Court’s jurisdiction. 89 Thus, Russia (PCNICC/1999/DP.12), Germany (PCNICC/1999/DP.13).

(according to some) conform with its criterion,90 and (according to others) turn to the General Assembly to ask the International Court of Justice for an advisory opinion on the basis of which the Assembly could approve a recommendation that the Court would then consider.91

12. Those who call for prior and binding intervention by the Security Council are in reality seeking to extend the veto privilege of its permanent members and impunity from the Charter to the Statute of the Criminal Court for them and their protégés. By requiring a determination by the Council, the Court is converted into its legal tool when the resolution is approved and, when it is not, the Court falls at the mercy of each of the permanent members. If the Criminal Court has to depend on the prior pronouncement of aggression made by another organ, the logical thing to do would be to assign such authority to the principal judicial body of the United Nations – the International Court of Justice.92

Outcome

13. In the past we have witnessed the prosecution and condemnation of the perpetrators of a war of aggression as a crime against peace. This occurred in Nuremberg and Tokyo at the end of the Second World War. An exemplary case is that of Rudolf Hess, who, unlike his fellow defendants, was condemned solely for this crime. He was sentenced to life in prison, where he remained until his death in 1987. At the time not even all the judges that comprised the international military tribunals agreed that the moral censure of the war of aggression had been

90 To that end Cameroon presented an amendment to article 10.1 of the Statute at the Rome Conference (A/CONF.183/C.1/L.39). Soon after, in the ICC Preparatory Committee, Greece/Portugal (PCNICC/1999/WGCA/DP.1 and PCNICC/2000/WGCA/DP.5) and Colombia (PCNICC/2000/WGCA/DP.1). 91 Thus, Bosnia and Herzegovina, New Zealand and Romania (PCNICC/2001/WGCA/DP.1). 92 As special rapporteur of the ILC on the international responsibility of states for internationally wrongful acts, Gaetano Arangio-Ruiz considered this possibility from the standpoint of the contentious jurisdiction of the International Court of Justice, warning at the same time about its limitations, derived from the current (consensual) bases of its jurisdiction (Anuario de la CDI, 1988, vol. I, p. 114).

Antonio Remiro Brotóns 16

transformed into legal censure.93 Fifty years later those doubts have faded, at least as far as war of aggression is concerned, and one may hold that the prohibition of the threat and use of force as proclaimed by the United Nations Charter has been extended to other forms of aggression and incorporated in the norms of Customary International Law.94

But this statement lacks practical relevance if there is no competent body to judge the crime and punish those responsible. Once the Criminal Court Statute is in force, postponing a consideration of its jurisdiction in relation to the crime of aggression is very serious, especially due to the eagerness of the most conspicuous members of international society to reduce the meaning of the category of crime and to give the permanent members of the Security Council exclusive control over its prosecution and judgment. On the other hand, the establishment of new ad hoc international tribunals must be discarded, such as those created by the Council for events in the former Yugoslavia since 1991 (Res. 827 of 25 May 1993) and in Rwanda in 1994 (Res. 955 of 8 November 1994). By focusing on crimes that occurred in civil conflicts, these tribunals avoided the crime of aggression in their statutes.

If we consider that the crime of aggression, by nature, is only prosecutable by international legal authorities,95 we are lost. The International Law

93 To that end recall that Judges Pal and Roling, who sat on the Tokyo tribunal, differed from the majority, sustaining that while the aggressors did deserve moral condemnation, the crime was not so either before the war nor when it started, for the conditions which in international relations could have originated it were not met (B.V.A. Roling and C.F. Ruter (eds), The Tokyo Judgment, vol. II, 1977). 94 ICJ, judgment of 27 June 1986 (Actividades militares y paramilitares en y contra Nicaragua), ICJ Reports 1986, p. 103. The Court asserts this with regard to letter g) of article 3 of the definition of aggression of the General Assembly (Res. 3314-XXIX), which sheltered the most problematic and debated of the assumptions (the sending by a state or in its name of armed bands, groups, irregulars or mercenaries who undertake acts of armed force against another state). The assumption is circumscribed to those acts of armed force ‘of such gravity as to amount to the acts listed above …’ In these terms the implication that all the assumptions mentioned in article 3 are nowadays covered by consuetudinary rules seems undeniable. 95 For example, as sustained by J. Crawford in the ILC (Anuario de la CDI, 1994, vol. I, p. 221).

Commission did not come this far in its drafts, though it did point out that only the judges of the national state of those allegedly involved could try them in defect or as an alternative to international tribunals. By making the aggressor’s nationality the only legitimate link to state jurisdiction, the Commission seems to have taken a narrow approach that is not very realistic in its assumption that national judges would be willing to exercise it.96

The Commission’s approach is narrow because: 1) it presumes that state nationals can decide what to do with their own aggressor state; and 2) it overlooks the legitimate interest of the assaulted state to exercise jurisdiction should the occasion arise, an interest that may also be shared by the victims’ countries of nationality or residence. The Statute of the Criminal Court affirms that ‘the most serious crimes … must not go unpunished’, and to that end that ‘their effective prosecution must be ensured by taking measures at the national level … [and] that it is the duty of every state to exercise its criminal jurisdiction over those responsible’.97

On the other hand, to believe in a national judge’s willingness to charge compatriots with aggression is not very realistic, even when they have lost power as a result of violence. In civil conflicts they are called to account for genocide, crimes against humanity, torture and war crimes; in international conflicts, they may be prosecuted for having betrayed their homeland, if defeated, but not for aggression. The Iraqi courts should now have the opportunity to include aggression against Iran and Kuwait in the list of charges against Saddam Hussein and his collaborators. However, it is doubtful that they will. The fatal transfer of the aggressor’s guilt onto the state, its institutions and citizens, who probably consented to, authorised or encouraged its acts against traditional enemies, has a dissuasive effect, not only on the administration of justice, but also on the legal order. How many states’ legal frameworks cover the crime of aggression? How many have jurisdiction over it? National judges will do whatever they can to avoid letting outsiders in and create a foreign kind of justice.

96 V. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in A. Cassese, P. Gaeta and J. R. W. D. Jones (eds), The Rome Statute of the ICC: A Commentary, Oxford U. Press, 2002, vol. I, p. 432. 97 Fourth and sixth paragraphs of the ICC Statute preamble.

Working Paper nº 10

Aggression, Crime of Aggression, Crime without Punishment 17

As if this were not enough, there is also the issue of immunity from criminal jurisdiction for state agents, and particularly its top leaders, while in office. The International Court of Justice has affirmed this in absolute terms before state courts, upon being asked to do so by the Democratic Republic of the Congo, one of whose ministers was tried in Belgium for international crimes.98 Such immunity has no relevance before the International Criminal Court,99 though the Statute does indicate that the Court cannot force State Parties to fulfil their duty to cooperate in surrendering an individual if such a handover is incompatible with the immunity obligations imposed by International Law (or with those it has accepted by agreement with a third party, besides such obligations).100 The latter has served as a loophole for the dozens of agreements that the United States has signed to that end to very conveniently protect its citizens from the Court, bearing in mind the extensive deployment of its personnel and the methods behind its conduct. This is an attitude, on the other hand, that seems very civilised, given that such figures as John Bolton have proposed relegating the Court to oblivion.101

A story attributed to Augustine of Hippo tells of a pirate who, upon meeting Alexander the Great, blurted out that the only difference between them stemmed from the degree of their depredations. As it stands, only pirates are hanged. Aggressors can sleep calmly in their stable condition of being alleged criminals. They shall die of something else, unless they are defeated, in which case their prosecution will be the result of such defeat. Aggression and crime: do they belong to the sphere of politics and diplomacy, but not to that of justice, which can serve them but not displace them? Should this be the case, if the aim is to suppress, in countries emerging from tyrannical regimes, the extraterritorial prosecution of other crimes by shouting ‘long live democracy, down with universal justice!’ – then that, they say, is the price. Why be shocked when faced with aggression and aggressors that cry ‘long live peace, long live freedom, down with international justice!’? It is here, with the winners and losers, where the eternal extent of the crime stands. If, as it seems, aggression receives backing by citizens in some democratic and developed countries, then perhaps it is not a crime after all, but rather just a point of view.

98 Judgment of 14 February 2002 concerning the Arrest Warrant of 11 April 2000 (D. R. Congo vs. Belgium). 99 Article 27 of the ICC Statute. 100 Article 98 of the ICC Statute. 101 J. Bolton, ‘Courting danger. What’s Wrong with the ICC’, The National Interest, Winter 1998-1999, pp. 60-71.

WORKING PAPERS ……………… POLICY PAPERS ………………1 A proposal for governance of the Gaza strip in

the context of the announced Israeli withdrawal Toledo International Centre for Peace, at the initiative of Prof. Shlomo Ben-Ami November 2004

1 Europe in Iraq: from standoff to engagement? Richard Youngs November 2004

2 Ten years of the Barcelona Process: A Model for Supporting Arab Reform? Richard Youngs January 2005

2 Hacia una nueva cooperación española Silvia Hidalgo y Fernando Espada December 2004

3 Political Islam: Ready for Engagement? Emad El-Din Shahin February 2005

3 Uso de la fuerza y responsabilidad de proteger. El debate sobre la reforma de la ONU Carlos Espósito June 2005

4 Reflexiones sobre la reforma del Servicio Exterior de España Carlos Espósito February 2005

4 A Peacebuilding Commission for the United Nations Jessica Almqvist June 2005

5 Which Justice for Perpetrators of Acts of Terrorism? The Need for Guidelines Jessica Almqvist March 2005

6 Spain and Morocco: Towards a Reform Agenda? Richard Gillespie April 2005

7 Contribución española a la construcción de la paz. Razones y propuestas para la elaboración de un Plan de Acción Luis Peral April 2005

8 EU instruments for conflict prevention Javier Niño Pérez April 2005

9 España y el Magreb durante el segundo mandato del Partido Popular. Un período excepcional Laura Feliú May 2005

10 Aggression, Crime of Aggression, Crime without Punishment Antonio Remiro Brotóns June 2005

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