Making Aggression a Crime Under Domestic Law

On the Legislative Implementation of Article 8bis of the ICC Statute

Author: Annegret Hartig

Publisher: T.M.C. Asser Press

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

This book offers a comprehensive analysis of the legal questions that arise for the legislative branch when implementing the crime of aggression into domestic law. Despite being the “supreme international crime” that gave birth to international criminal law in Nuremberg, its ICC Statute definition has been incorporated into domestic law by fewer than 20 States. The crime of aggression was also omitted in the rich debate held among German scholars in the early 2000s regarding the legislative implementation of other ICC Statute crimes. The current inability of the International Criminal Court to respond to the Russian aggression towards Ukraine invites the continuation of these academic debates without neglecting the particularities of the crime of aggression.

The fundamental issues discussed in this volume include the obligation to criminalize aggression, the core wrong of the crime, the normative gaps under domestic law and the jurisdictional gaps under the ICC Statute. To facilitate the operationalization of domestic implementation, the book explores the technical options for incorporating the definition into domestic law, the geographical ambit of domestic jurisdiction—most notably universal jurisdiction—as well as legal challenges such as immunities.

The book is aimed primarily at researchers and States with an interest in the domestic implementation of international criminal law but those already working in the field should also find much of interest contained within it.

Dr. Annegret Hartig is Program Director of the Global Institute for the Prevention of Aggression and worked as a researcher at the University of Hamburg where she obtained her doctoral degree in international criminal law.

Frontmatter

Chapter 1. Introduction

Abstract

Although the Russian invasion of Ukraine in 2022 appears to be the textbook example of the “crime of aggression”, the restricted jurisdictional regime under the ICC Statute prevents the International Criminal Court from extending criminal investigations to this crime. This creates the risk of substantive selectivity in international criminal justice. It selectively responds to some, but not all crimes under international law. States cannot address this risk by conducting domestic aggression trials if they do not have a substantive provision criminalizing aggression under domestic law. The legislative deficiency can be overcome for future aggression cases by making aggression a crime under domestic law, which is the central topic of this book. The chapter sets out the aim, structure and approach of the book. It clarifies the main terms and how it intends to include the legislative practice of 16 States that have incorporated the definition from Article 8bis of the ICC Statute into domestic law. By highlighting the particularities of the crime of aggression for the purpose of implementation, it underscores why academic debates from the early 2000s on the domestic implementation of genocide, crimes against humanity and war crimes can only be the starting point. It ends with an overview of the content considered in each chapter.

Annegret Hartig

Chapter 2. An Obligation to Criminalize Aggression Under Domestic Law?

Abstract

The obligation of States to incorporate ICC Statute crimes into domestic law has been central in previous debates on implementation. The existence of an obligation to criminalize, however, does not mean that States engage in implementation. Relevant for State compliance is also the level of precision of the norm and mechanisms of enforcement in case of a violation. This chapter assesses potential sources of an obligation by taking into account factors that influence compliance. It starts with domestic constitutional law and continues with international treaty law, such as the ICC Statute and human rights treaties, customary international law and ius cogens. The chapter shows that the lack of an obligation stemming from the principle of complementarity under the ICC Statute is not compensated by the usually available enforcement mechanisms in case States are legally unable to exercise jurisdiction. The restricted aggression jurisdiction of the International Criminal Court and the few domestic implementations do not push States to proactively criminalize aggression. The chapter argues that it is possible to infer an obligation to criminalize aggression from the constitutional obligation of States to protect fundamental rights. The obligation of States to protect international human rights, the ius cogens nature of the prohibition of aggression or its accepted consequences in the field of State responsibility also support such an inference. However, this requires an extensive interpretative process, which is why the claimed existence of an obligation does not induce compliance.

Annegret Hartig

Chapter 3. The Core Wrong of the Crime of Aggression

Abstract

The need to implement the crime of genocide, crimes against humanity and war crimes was justified in Germany by the inability of domestic law to adequately reflect the core wrong of these crimes. To perform the same analysis for the then omitted crime of aggression, this chapter starts with identifying the core wrong of the crime as defined under Article 8bis of the ICC Statute. It does so by determining the “protected legal interests” of the crime before specifying the “type of attack” from which these interests are protected. This chapter breaks with the traditional view that perceives aggression as a crime that primarily protects State interests. It emphasizes the importance of the protection of international peace for the classification as a “crime under international law”. It argues that the crime of aggression can better address the unease resulting from the “humanization of international law” if conceptualized as a crime that also protects individual interests. It presents three possibilities to explain this human protective core of aggression. The chapter ultimately turns to the “type of attack”. It illuminates the limited protection of the identified protected interests from the use of armed force “by a State” which amounts to a “manifest violation” of the ius ad bellum and by persons who belong to the “leadership circle” of a State. The findings serve as a frame of reference for assessing in Chap. 4 the extent to which domestic criminal offenses can capture the core wrong of the crime of aggression.

Annegret Hartig

Chapter 4. Mapping the Normative Gaps Under Domestic Law

Abstract

Instead of implementing the ICC Statute crimes, States could in principle rely on ordinary criminal offenses in domestic trials. This was not an uncommon practice. States without implementation charged génocidaires, for example, with multiple murder. It is a common assumption, however, that aggression cannot be broken down in individual types of conducts. This could render States, without implementation, unable to punish the conduct of aggressors. Chapter 4 tests this general narrative and assesses the extent to which types of criminal offenses under domestic law cover the core wrong of the crime of aggression. Among these types are treason, other ordinary offenses, propaganda for war, the “crime of aggressive war” and other implemented “crimes under international law”. The chapter clarifies that ordinary criminal offenses may cover some effects of an act of aggression. However, any prosecution would send a distortive message about the core wrong committed by aggressors and typically be barred by the combatant’s privilege. Using the core wrong also explains why the prosecution of aggressors for the cumulative or subsequent commission of genocide, crimes against humanity and war crimes is insufficient. The chapter additionally challenges proposals which inject ius ad bellum considerations into the assessment of the vague terms of the war crime of “excessive attack” and of the crime against humanity of “other inhuman acts”. This leaves only States with the Nuremberg and Tokyo version of the “crime of aggressive war” in the position to cover most aspects of the Kampala version of the crime of aggression.

Annegret Hartig

Chapter 5. The Restricted Jurisdictional Regime of the International Criminal Court

Abstract

In a book on domestic implementation, exploring the jurisdictional regime of the International Criminal Court matters due to the principle of complementarity. If cases do not fall within the complementary jurisdiction of the International Criminal Court, States lack a sovereignty-driven interest to enact legislation to avoid future judicial interventions. Restrictions on the jurisdiction of the International Criminal Court can thus affect domestic implementation. This chapter explores the restrictions imposed on the regime of the International Criminal Court regarding the crime of aggression. It chronologically assesses the decisions which were adopted at the Rome Conference in 1998, the Kampala Review Conference in 2010 and the Assembly of States Parties in New York City in 2017. The jurisdictional regime following a State referral or proprio motu investigations can be described as being more consensual regarding the crime of aggression. It excludes the territory and nationals of non-States Parties, acts of aggression by States Parties that have opted out, and (arguably) the territory and nationals of States Parties which have not ratified the Kampala Amendments. This leaves little of the strengths of territorial jurisdiction, the most basic principle of criminal jurisdiction. It installs a regime for the crime of aggression, which appeared unacceptable to the overwhelming majority at the Rome Conference. The restrictions increase the dependency from the often-paralyzed UN Security Council which is why domestic implementations can reduce the risk of impunity.

Annegret Hartig

Chapter 6. Options for Incorporating the Definition of the Crime of Aggression into Domestic Law

Abstract

The operationalization of domestic implementation gives rise to the question of how to incorporate the definitions of the ICC Statute crimes into domestic law. This chapter discusses the three major options: implementation by copying the definition, implementation by reference to Article 8bis of the ICC Statute (or to other sources of international law) and implementation of a modified definition. It clarifies that implementation by copying Article 8bis of the ICC Statute does not suffice to make domestic law consistent with the ICC Statute definition. It additionally requires the implementation of the absolute leadership clause of Article 25(3bis) of the ICC Statute. Despite the commonly assumed tension between the principle of legality and the technique of using references, the chapter argues that an implementation by using a static blanket reference to Article 8bis of the ICC Statute is less problematic. It does not impair the understanding of a crime that is committed by persons who are typically legally trained or legally advised. It also presents the modified implementations since 2010. They suggest that States try to closely mirror the ICC Statute definition, even if the disciplinary effect of complementarity is reduced regarding the crime of aggression. By mostly leaving the previously criticized “manifest” threshold without modification, the existing implementations seem to confirm that States did their best to describe with sufficient clarity a crime which is based on violations of a field of law that is known for its ambiguities.

Annegret Hartig

Chapter 7. Legislative Specification of the Geographical Ambit of Domestic Criminal Jurisdiction

Abstract

The operationalization of domestic implementation requires States to specify the geographical ambit of domestic criminal jurisdiction. To avoid State responsibility and corrective interpretations by domestic courts, this exercise of prescriptive jurisdiction needs to be based on a “permissive rule”. Such rules rebut the general presumption that international law prohibits States to extend jurisdiction to matters with a foreign element. The chapter discusses whether the principle of territoriality, the nationality principle, the protective principle, the passive personality principle and universal jurisdiction provide a permissive rule regarding the crime of aggression. The chapter clarifies that the nationality of the perpetrator or the nature of the crime cannot challenge the right of States to exercise territorial prescriptive jurisdiction. Due to the transboundary nature of the crime, territoriality enables States to criminalize aggression committed against them or from their territory. The added value of other principles of jurisdiction is primarily limited to criminalize those situations that do not fall under territorial jurisdiction. The protective principle may stretch to allied States whose vital interests are threatened. The chapter argues that it is possible to assume a permissive rule under customary international law for third States to exercise universal jurisdiction over the crime of aggression. This can be argued either under an inductive approach by emphasizing the practice of the International Military Tribunal at Nuremberg, or with support of deductive reasoning based on the nature of aggression as a “crime under international law”.

Annegret Hartig

Chapter 8. Legal Challenges for Foreign Adjudicative Jurisdiction

Abstract

Although this book primarily deals with prescriptive jurisdiction as exercised by the legislature, it would be incomplete without addressing legal challenges that arise when domestic courts apply the enacted laws. This chapter focuses on challenges for States other than the aggressor State. It explores the situation where a State has lawfully exercised prescriptive jurisdiction according to the previous chapters, but where international law prohibits domestic courts from exercising adjudicative jurisdiction over a specific person and case. The discussion is limited to the principle of par in parem non habet imperium, personal and functional immunities as well as the Monetary Gold doctrine. These challenges seem to respond to the “unique character” of the crime of aggression whose definition typically results in high-profile cases involving persons in powerful positions and the assessment of an act of State. This book does not question the barring effect of personal immunities of certain State officials while in office. The relevance of domestic implementations would be dramatically reduced, however, if functional immunities were applicable and barred proceedings even after State officials have left office. Unlike the International Law Commission, the chapter argues that functional immunities are inapplicable under customary international law with respect to the crime of aggression. This claim is based on inductive and deductive reasoning. It also explains why there is neither an absolute nor an attenuated prohibitive rule for foreign adjudicative jurisdiction flowing from the ambiguous principle of par in parem non habet imperium, or the international dispute settlement rule of Monetary Gold.

Annegret Hartig

Backmatter

Title: Making Aggression a Crime Under Domestic Law
Author: Annegret Hartig
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-591-1
Print ISBN: 978-94-6265-590-4
DOI: https://doi.org/10.1007/978-94-6265-591-1