As international criminal law ripens into a discipline with practical application, the Brennan Center’s Faiza Patel analyzes the current debates on the international crime of waging aggressive war. Her essay in the Research Handbook on International Criminal Law considers whether the International Criminal Court (ICC) is equipped to decide whether a particular use of force constitutes a crime of aggression.
Since the Nuremberg Tribunal found the German leadership guilty of the crime of waging aggressive war, there have been no further prosecutions of such acts. Indeed, at the time that the Statute of the ICC was being considered, the issue of whether or not to include the crime of aggression was the subject of impassioned debate. Ironically, countries like the United Kingdom and the United States – which prosecuted aggression at Nuremberg –argued against including this crime in the jurisdiction of the ICC. These countries expressed concerns about accepting legal constraints on their ability to mount military or humanitarian interventions. A second group of countries – comprising several Arab states – were keen to include aggression in the Statute of ICC, animated at least in part by a regional agenda. They were joined by a large group of European and non-aligned countries that argued that without the crime of aggression the ICC’s jurisdiction would be unacceptably incomplete.
The diplomatic solution was to incorporate aggression in the mandate of the ICC as one of the “the most serious crimes of concern to the international community as a whole,” but to put off the exercise of jurisdiction until states were able to agree to a definition of aggression. Such a definition was agreed at the Review Conference on the Statute held in 2010 in Kampala, Uganda. The Court’s ability to exercise such jurisdiction was, however, postponed until at least 2017 and depends on a decision by two-thirds of the States that are parties to the ICC.
A critical argument against including aggression within the jurisdiction of the ICC has been that the issue is of a political rather than a legal nature, and that it should be left to the discretion of the United Nations Security Council, not a Court. Patel’s article addresses this issue head on by analyzing whether the ICC is equipped to determine whether a particular use of force constitutes illegal aggression. Using the political question doctrine developed by U.S. courts, Patel demonstrates that aggression is not exclusively the domain of the Security Council. Drawing on the experience of other international tribunals – like the International Court of Justice and the International Criminal Tribunals for the former Yugoslavia and Rwanda – Patel argues that the ICC has the tools and capacity to decide on the legality of a particular use of force. In exploring these issues, the article delves deeply into the discussions that led to the formulation ultimately included in the ICC Statute and thus provides critical context for understanding the provisions adopted in 2010.