Global Policy Forum

Introduction

After the July/August session of the Preparatory Commission, some Coalition members suggested that the CICC Secretariat undertake to summarize the various proposals on aggression which were compiled and distributed at the end of the session by the United Nations Secretariat (PCNICC/1999/INF/2). As follows is a summary of the provisions of these proposals.

Key formulations from each proposal have been extracted and compiled by subject, to allow the reader an overview of how the language from the different proposals compares. For example, under the definition of aggression, Part I compiles the language from proposals relating to the role of the individual in the commission of the crime of aggression. The corresponding proposal numbers are indicated after each formulation. The summary is divided between those provisions which address the definition of aggression and those which address how the Court's jurisdiction over aggression could be triggered.

These proposals range in time from the sessions of the Preparatory Committee, through the Rome Diplomatic Conference and into the sessions of the Preparatory Commission. It is clear that they have evolved in response to the development of the Rome Statute. This should be kept in mind while comparing them. Additionally, it is worth noting that most proposals focus more directly on the definition of aggression, and less on how the Court's jurisdiction over aggression should be triggered or the Court's relationship with the United Nations Security Council.

Appended to this document are additional references to the crime of aggression: the Charter of the International Military Tribunal (Nuremberg Charter), the Control Council Law No. 10, an excerpt from the 1954 Draft Code of Offenses Against the Peace and Security of Mankind, the 1974 General Assembly resolution setting forth a definition of aggression, an excerpt from the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission, and a proposal for the definition of aggression prepared for publication by a Former Nuremberg prosecutor Ben Ferencz.

The Coalition for an International Criminal Court does not take a position on the eventual shape or disposition of the crime of aggression. This summary is meant only to assist those representatives of NGOs and governments and others who are following the development of the crime of aggression at the UN Preparatory Commission for an International Criminal Court.

DEFINITION OF AGGRESSION

I. Persons who incur criminal responsibility (i.e. person who is in position to exercise control, capable of directing political/military actions in his or her state)

A. the crime of aggression is committed by a person who is in a position to exercise control or capable of directing political/military actions in his State against another State (A/AC.249/1997/WG.1/DP.6)
B. committed by an individual who is in a position of exercising control or capable of directing political or military action of a State (A/AC.249/1998/DP.12).
C. the crime of aggression is committed by a person who is in a position of exercising control or is capable of directing political/military actions in his State (A/Conf.183/C.1/L.37).
D. committed by an individual who is in a position of exercising control or capable of directing or guiding the political or military action of a State (A/CONF.183/C.1/L.39: OPTION A and OPTION B).
E. the crime of aggression is committed by a person who is in a position of exercising control or capable of directing political/military actions in his State (A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).
F. committed by an individual who is in a position of exercising control or capable of directing the political or military action of a State (PCNICC/1999/DP.13).

II. Legal conditions governing the definition of aggression

A. for the purposes of this Statute (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.37; PCNICC/1999/DP.11).
B. for the purpose of the present Statute (A/AC.249/1998/DP.12; A/CONF.183/C.1/L.39: OPTION A).
C. for the purpose of the present Statute, and subject to the role performed by the Security Council in regard to aggression in accordance with article 10 of the present Statute (A/CONF.183/C.1/L.39: OPTION B).
D. for the purpose of this Statute (A/Conf.183/C.1/L.56).
E. for the purposes of the present Statute and subject to a prior determination by the United Nations Security Council of an act of aggression by the State concerned (PCNICC/1999/DP.12).
F. for the purpose of the present Statute and subject to a determination by the Security Council referred to in article 10, paragraph 2, regarding the act of a State (PCNICC/1999/DP.13).

III. Legal conditions under which aggression is committed

A. in contravention to the Charter of the United Nations (A/AC.249/1997/WG.1/DP.6)
B. in [manifest] contravention of the Charter of the United Nations (A/AC.249/1998/DP.12).
C. in contravention of the Charter of the United Nations (A/Conf.183/C.1/L.37; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).
D. in manifest contravention of the Charter of the United Nations (A/CONF.183/C.1/L.39: OPTION A and OPTION B; PCNICC/1999/DP.13).

IV. Means of committing aggression

A. by resorting to armed force (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.37)
B. an armed attack directed by a State (A/AC.249/1998/DP.12; PCNICC/1999/DP.13)
C. the use of armed force (A/CONF.183/C.1/L.39: OPTION A and OPTION B).
D. by resorting to armed force (A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).

V. Purpose of committing aggression

A. to threaten or violate that State's sovereignty, territorial integrity or political independence (A/AC.249/1997/WG.1/DP.6)
B. against the territorial integrity or political independence of another State (A/AC.249/1998/DP.12; PCNICC/1999/DP.13).
C. against another State or to deprive other peoples of their rights to self-determination, freedom and independence (A/Conf.183/C.1/L.37).
D. to threaten to violate the sovereignty, territorial integrity or political independence of that State or the inalienable rights of those peoples (A/Conf.183/C.1/L.37).
E. Spolitical independence of that State except when this is required by the principle of equal rights and self-determination of peoples and the rights of individual or collective self-defence. ." (A/CONF.183/C.1/L.38).
F. against the sovereignty, territorial integrity or political independence of another State (A/CONF.183/C.1/L.39: OPTION A and OPTION B).
G. to threaten or violate the sovereignty, territorial integrity or political independence of that State or the inalienable rights of those peoples (A/Conf.183/C.1/L.56).
H. to threaten or to violate the sovereignty, territorial integrity or political independence of that State or the inalienable rights of those people (PCNICC/1999/DP.11).

VI. Establishing the list of acts which constitute aggression

A. acts constituting aggression [include][are] the following (A/AC.249/1997/WG.1/DP.6)
B. the crime of aggression means either of the following acts (A/AC.249/1998/DP.12; PCNICC/1999/DP.13).
C. the crime of aggression is one of the following acts (A/CONF.183/C.1/L.39: OPTION A and OPTION B).
D. acts constituting aggression include the following (A/CONF.183/C.1/L.56).
E. acts constituting aggression include the following, whether preceded by a declaration of war or not (PCNICC/1999/DP.11).
F. the crime of aggression means any of the following acts (PCNICC/1999/DP.12).

VII. Acts which constitute aggression

A. invasion or attack

. the invasion or attack by the armed forces of a State of a territory of another State (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).

B. occupation

. any military occupation, however temporary, resulting from such invasion or attack (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).
. with the object or result of establishing a [military] occupation of the territory of such other State or part thereof by armed forces of the attacking State (A/AC.249/1998/DP.12).
. with the object or result of establishing a military occupation of the territory of such other State or part thereof by armed forces of the attacking State (PCNICC/1999/DP.13).

C. annexation

. any annexation by the use of force of the territory of another State or part thereof (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11;).
. with the object or result of annexing the territory of such other State or part thereof by armed forces of the attacking State (A/AC.249/1998/DP.12; PCNICC/1999/DP.13).

D. bombardment or use of weapons

. 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 (A/AC.249/1997/WG.1/DP.6; PCNICC/1999/DP.11).
. bombardment by the armed forces of a State of the territory of another State or the use of any weapons by a State against the territory of another State (A/Conf.183/C.1/L.56).

E. blockade

. the blockade of the ports or coasts of a State by the armed forces of another State (A/AC.249/1997/WG.1/DP.6; PCNICC/1999/DP.11).
. the blockade of a State by the armed forces of another State (A/CONF. 183/C.1/L.38).
. the blockade of the ports or coasts of a State by the armed forces of another State (A/Conf.183/C.1/L.56).

F. attack on land, sea or air forces

. an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).

G. use of armed forces in contravention of conditions of agreement between States

. the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State in contravention of the conditions provided for in the agreement, or any extension of their presence in such territory beyond the termination of the agreement (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).

H. actions of State in allowing its territory to be used for perpetrating aggression against a third State

. the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).

I. involvement of armed bands, groups, irregulars or mercenaries

. the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein (A/AC.249/1997/WG.1/DP.6; A/Conf.183/C.1/L.56; PCNICC/1999/DP.11).

VIII. Direct and accessory liability (planning, preparation, ordering, conspiracy)

A. initiating or carrying out AND planning, preparing or ordering (where linked to crimes committed as listed in section VII(b) and (c) (A/AC.249/1998/DP.12, PCNICC/1999/DP.13).
B. initiating, planning, preparing, ordering or launching (A/CONF.183/C.1/L.39: OPTION A and OPTION B).
C. planning, preparing, initiating, carrying out a war of aggression (PCNICC/1999/DP.12).

CONDITIONS WHICH TRIGGER JURISDICTION

I. Independence of the Court

In the context of the proposed inclusion and definition of the crime of aggression, a new paragraph 3 should be added after existing paragraph 2 of the ILC draft, which would read as follows: "The determination by the Security Council under paragraph 2 above shall not be interpreted as in any way affecting the independence of the Court in deciding on the commission of the crime of aggression by a given person." The existing paragraph 3 of article 23 of the ILC draft would be deleted. (A/AC.249/1997/WG.1/DP.6)

II. Relationship of the Court to the UN Security Council

A. That the definition not lead to frivolous accusations of a political nature against the leadership of a Member State; that it must be avoided that the definition somehow negatively affects the legitimate use of armed force in conformity with the Charter of the United Nations; that the inclusion of the crime of aggression should leave unimpaired the primary; responsibility of the Security Council for the maintenance of international peace and security in accordance with Articles 24 and 39 of the Charter; that the formulation "as determined by the Security Council", from the formulation proposed in February 1999 (UN Doc. A/AC.249/1997/L.5, p. 14) not be included, as it would ruin the concept of a self-sustained, autonomous definition of the crime of aggression. (A/AC.249/1998/DP.12; the comments above are culled from A/AC.249/1997/WG.1/DP.20)
B. The Court shall prosecute and punish the crime of aggression as defined in paragraph 1 of this article without prejudice to the powers exercised by the Security Council in regard to aggression under Chapter VII of the Charter of the United Nations (A/CONF.183/C.1/L.39, OPTION A).
C. N.B.: Since of necessity this definition of the crime of aggression involves the relationship between the Court and the Security Council, a new formulation for article 10 appears to be necessary (relationship between the Security Council and the Court, based on article 10 of the Preparatory Committee report, A/Conf.183/2/Add.1, 1998:
1. The Security Council shall determine the existence of aggression in accordance with the pertinent provisions of the Charter of the United Nations before any proceedings take place in the Court in regard to a crime of aggression.
2. The Security Council may determine the existence of aggression in accordance with paragraph 1. of this article:
a. On its own initiative;
b. At the request of a State which considers itself the victim of aggression;
c. At the request of the Court when a complaint relating to a crime of aggression has been submitted to it;
d. At the request of any other organ of the United Nations which, under the Charter, is able to draw the attention of the Security Council to a situation likely to endanger the maintenance of international peace and security.
3. The Court, when a complaint relating to a crime of aggression has been submitted to it, shall suspend its deliberation and refer the matter to the Security Council for a declaration, in accordance with the pertinent provisions of the Charter, that the aggression does or does not exist. A letter from the President of the Security Council shall convey the Security Council's finding to the Prosecutor of the Court, accompanied by all supporting material available to the Council in regard to the aggression whose existence it has determined. (N.B. This sentence is a repetition of article 10, paragraph 2).
4. Notwithstanding the provisions of paragraph 1 of this article, the Court may commence an investigation for the purpose of establishing whether a crime of aggression within the meaning of the present Statute exists, if the Security Council, having had the matter referred to it by the Court under paragraph 3. of the present article, does not reply within a reasonable time.
5. The Security Council, on the basis of a formal decision under Chapter VI of the Charter of the United Nations, may lodge a complaint with the Prosecutor specifying that crimes referred to in article 5 appear to have been committed. (N.B. This reproduces article 10, paragraph 3.)
6. The Court may request the assistance of the Security Council in conducting investigations into cases submitted to it, in arresting persons who are being prosecuted or have escaped from custody, or in enforcing its decisions. (A/CONF.183/C.1/L.39, OPTION B)

III. Substantive conditions: sufficient gravity

A. provided that the acts concerned or their consequences are of sufficient gravity. (This proposals indicates that the possibility of specifying the criteria for assessing the sufficient gravity of the acts concerned or their consequences could be considered.) (A/AC.249/1997/WG.1/DP.6).

Index

A/AC.249/1997/WG.1/DP.6: proposal submitted by Egypt and Italy, 21 February 1997.

A/AC.249/1998/DP.12: revised proposal submitted by a group of interested States including Germany, 1 April 1998.

A/AC.249/1997/WG.1/DP.40: Proposal by Germany, 11 December 1997.

A/Conf.183/C.1/L.37: proposal submitted by Algeria, Bahrain, the Islamic Republic of Iran, Iraq, Kuwait, Lebanon, the Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, the Sudan, the Syrian Arab Republic, the United Arab Emirates and Yemen, 1 July 1998.

A/CONF.183/C.1/L.38: proposal submitted by Armenia, 1 July 1998.

A/CONF.183/C.1/L.39: proposal submitted by Cameroon, 2 July 1998.

A/CONF.183/C.1/L.56: Proposal submitted by Algeria, Bahrain, Iraq, Kuwait, Lebanon, Libyan Arab Jamahiriya, Oman, Qatar, Saudi Arabia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and Yemen, reissued for technical reasons, 8 July 1998.

PCNICC/1999/DP.11: Proposal submitted by Bahrain, Iraq, Lebanon, the Libyan Arab Jamahiriya, Oman, the Sudan, the Syrian Arab Republic, and Yemen , 26 February 1999.

PCNICC/1999/DP.12: proposal submitted by the Russian Federation, 29 July 1999.

PCNICC/1999/DP.13: proposal submitted by Germany, 30 July 1999.