April 12, 2010
The core concept of Aggression and its elements is well known by the international community. The concept was included in articles 1 and 39 of the Charter.[1] Furthermore, a definition of Aggression as a conduct prohibited by international law was included in Resolution 3314 of the United Nations, issued in 1974. [2] However true this may be, agreeing on a definition of a crime of Aggression is far much difficult.
The Special Working Group on the Crime of Aggression (SWGCA), created in 2002, has been drafting the Elements of the crime of Aggression ever since, in pursuit of consent of member states to approve the draft submitted for review of the group in 2002.[3] The definition of the crime proposed and provisionally agreed by the parties is substantively equal to the definition contained in Resolution 3314.[4]
Its elements are: “1: The perpetrator was in a position effectively to exercise control over or to direct the political or military action of the State which committed an act of aggression as defined in element 5 of these Elements. 2: The perpetrator was knowingly in that position. 3: The perpetrator ordered or participated actively in the planning, preparation or execution of the act of aggression. 4: The perpetrator committed element 3 with intent and knowledge. 5: An “act of aggression”, that is to say, an act referred to in UN General Assembly resolution 3314 (XXIX) of 14 December 1974, was committed by a State.6: The perpetrator knew that the actions of the State amounted to an act of aggression. 7: The act of aggression, by its character, gravity and scale, constituted a flagrant violation of the Charter of the UN, 8: The perpetrator had intent and knowledge with respect to element 7.”
Further, if we take a look to Resolution 3314 we will find that: “Article 1. Aggression is the use of force by one State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the UN, as set out in this definition. (…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State. Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”
Several criticisms can be made to this formula of Aggression, but the most problematic is that of “in any other manner inconsistent with the Charter”. Under a broad interpretation of article 51 of the Charter or under the new doctrine of responsibility to protect, a wide range of arguments and defenses could be made by states in defending that their conduct was not inconsistent with the Charter. We may conclude, therefore, that the requisite of definiteness of crimes widely accepted by international and domestic criminal law would not be present.
Moreover, the definition of aggression formulated in Resolution 3314 also results problematic under the requisite of knowledge of the criminal conduct. Proof of scienter may be particularly difficult in cases involving highly problematic issues of international law, such as the right to preemptive action, or the right to self defense against cyber attacks.
Lastly, given the dynamics of world power and international conflict, criminalizing Aggression could lead the world to a state of anarchy, where states would try to pursue their political agenda by legal warfare at the international level against heads of states of competing countries.
[1] Charter of the United Nations. Article 1. The Purposes of the United National are: 1) To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace (…) Article 39. “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.
[2] Resolution 3314 of the United Nations. Articles 3 and 4. “Article 1. Aggression is the use of force by one State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.
(…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.
Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”
[3] Paragraph 42 of the Report of the SWGCA, dated 20 February 2009 (ICCASP/
7/SWGCA/2)
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