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Potter, James --- "The Threshold in the Proposed Definition of the Crime of Aggression" [2008] NZYbkIntLaw 24; (2008) 6 New Zealand Yearbook of International Law 155

Last Updated: 7 February 2019

THE THRESHOLD IN THE PROPOSED DEFINITION OF THE CRIME OF AGGRESSION

James Potter^[∗]

I. GENERAL

This paper examines the threshold clause in the current proposed definition of the crime of aggression, which limits the scope of the proposed crime to involvement in acts of aggression that constitute a manifest violation of the Charter of the United Nations.^[1] It traces the historical development of this aspect of the definition, from its roots in the Nuremberg Charter’s^[2] criminalisation of wars of aggression, and looks at how this approach evolved through the work of the International Law Commission, the Preparatory Commission for the International Criminal Court and the Special Working Group on the Crime of Aggression (‘SWGCA’) to the current definition,^[3] which broadens the definition of the crime to include involvement other acts of aggression, but uses the threshold clause to limit the scope of the crime to the most serious cases.

II. HISTORICAL BACKGROUND – THE NUREMBERG CHARTER

As is well known, an agreement between the victorious Allied powers after the Second World War established the Nuremberg Tribunal and its charter (hereinafter referred to as the ‘Nuremberg Charter’).^[4] The Nuremberg Charter, in addition to war crimes and crimes against humanity, criminalised ‘crimes against peace’, which were defined as ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’,^[5] but did not define the term ‘war of aggression’.
As Clark has pointed out, delegates to the London Conference which negotiated the Nuremberg Charter considered including more precise language, but ultimately did not proceed down this path.^[6] During the negotiations at the London Conference, the US representative, Justice Robert H. Jackson, proposed a list of state acts which would result in a state being considered an ‘aggressor’, based on a treaty concluded by the Soviet Union and others in 1933.^[7] This proposal was ultimately not agreed and the definition was left without a detailed list of acts that would constitute a war of aggression.^[8]
The judgment of the Nuremberg Tribunal^[9] sheds little further light on what state conduct would amount to a war of aggression, and whether this term is intended to encompass a different range of conduct than an ‘act’ of aggression. However, a careful reading of the Nuremberg Judgment, and in particular the treatment of the actions of Nazi Germany against Austria, suggests that the Tribunal did intend to distinguish between acts of aggression that would amount to a ‘war of aggression’ and other acts of aggression.
The Tribunal describes how Austria was seized by Germany in March 1938, with the threat of invasion but without any actual armed conflict,^[10] and acquitted the defendant Kaltenbrunner, who participated in the annexation of Austria but not other Nazi acts of aggression, of participation in a common plan or conspiracy to commit crimes against peace. It held that

[t]here is no evidence connecting Kaltenbrunner with plans to wage aggressive war on any other front. The Anschluss, although it was an aggressive act, is not charged as an aggressive war, and the evidence against Kaltenbrunner under Count One does not, in the opinion of the Tribunal, show his direct participation in any plan to wage such a war.^[11]

This indicates that the Tribunal distinguished between an ‘aggressive act’ and other acts amounting to aggressive war, and considered that participation in the former should not be criminalised.
A broader approach was taken by Control Council Law No. 10,^[12] which was passed by Allied occupying powers to try groups of defendants other than the major Nazi leaders. In addition to aggressive war, Control Council Law No. 10 included in the definition of crimes against peace ‘[i]nitiation of invasions of other countries’.
As a result of this change, the lack of armed resistance in the invasion of Austria was not seen as important in the Ministries Case^[13], in which the Tribunal tried a number of high-ranking officials from German Reich ministries for crimes including crimes against peace and was prepared to find several defendants guilty as a result of their involvement in Nazi aggression against Austria as a crime against peace. But just as a war of aggression remained undefined in the Nuremberg Judgment, there was no definition of what would constitute an ‘invasion’ for the purposes of a definition of the crime of aggression.
This lack of clarity of the term ‘war of aggression’ in the Nuremberg jurisprudence has led some commentators to argue that the Tribunal avoided the task of defining aggression.^[14] Other commentators have argued that the term ‘war of aggression’ was intended to be synonymous with the term ‘act of aggression’. Dascalopoulou-Livada, for example, argues that the criminalisation of ‘invasions’ in addition to a ‘war of aggression’ in Control Council Law No. 10 ‘proves that there is no irrefutable truth in the assertion that at Nuremberg the crime was perceived and qualified only as “war of aggression”’, and that no distinction can be made between the terms ‘war of aggression’ and ‘aggression’.^[15]
It is perhaps putting it too strongly to argue that there was no distinction intended between the two terms. It seems clear from the acquittal of Kaltenbrunner that the Nuremberg Tribunal felt that the Nuremberg Charter only criminalised certain acts of aggression, and that individual participation in some acts of aggression fell short of some threshold required to attract criminal liability. This point remains true despite the extension of criminal liability to participation in ‘invasions’ in Control Council Law No. 10. It can be admitted however, that there is little guidance in the Nuremberg jurisprudence as to what will constitute a war of aggression or an ‘invasion’.
This lack of clarity in the Nuremberg jurisprudence is perhaps understandable, given that the Nazi military action resulted in Nazi occupation of most of Europe. The acts of Nazi Germany involved full-scale invasions of numerous states, and resulted in long term occupation or annexation of the territory of those states. The definitions in the Nuremberg Charter and Control Council Law No. 10, with their emphasis on a war of aggression or invasion of other countries, were sufficient to cover these factual circumstances. The Soviet delegate to the London Conference made this point rather bluntly in arguing that his primary concern was to punish Nazi criminals rather than define the crime under international law for future cases.^[16] Although other delegates argued for a more precise definition, the compromise definition agreed upon by the London Conference was sufficient to encompass the acts of Nazi Germany but did not provide a definition for the future.
The task facing states negotiating the definition of the crime of aggression in the Rome Statute, however, is a different one – to agree on a definition capable of applying to all possible future cases of aggression.

III. WORK OF THE INTERNATIONAL LAW COMMISSION

In the aftermath of the Second World War, following the Nuremberg Judgment, the International Law Commission (ILC) was tasked to formulate the principles of international law recognised in the Nuremberg Charter and judgment, and prepare a draft code of offences against the peace and security of mankind.^[17] The first draft code was submitted to the General Assembly in 1951.^[18] The ILC took a different approach to aggression in Article 2 of the draft code, stating that

any act of aggression, including the employment by the authorities of a State of armed force against another State for any purpose other than national or collective self-defence or in pursuance of a decision or recommendation by a competent organ of the United Nations.^[19]

The Tribunal went on to note that ‘every act of aggression constitutes a crime under this paragraph but that no attempt was made to enumerate such acts exhaustively.’^[20] This seems to go a lot further than Article 6 of the Nuremberg Charter, by providing that every act of aggression would constitute a crime.
This approach persisted in the 1991 draft code, when Article 15 provided that ‘an individual who commits or orders the commission of an act of aggression, shall, on conviction thereof, be sentenced...’.^[21] Comments received from states on the draft code questioned this aspect of the draft code. In particular, Australia noted that acts of aggression short of war would be illegal and result in state responsibility for the illegality, ‘it does not follow that the international community is willing to recognize that individuals in the delictual state are guilty of international crimes’.^[22]
In its response, the ILC downplayed the distinction between these two categories of acts of aggression, noting that there were some acts of aggression that would fall short of war but were nonetheless serious enough to constitute crimes.^[23] Even if Australia’s point was not fully addressed by the ILC, the ILC’s response does represent an acknowledgment that only certain acts of aggression reaching a certain threshold should be criminalised. Thus, Article 16 of the 1996 draft code, took a similar approach as the 1991 draft code, but the ILC’s commentary noted that individual criminal liability would only arise for ‘sufficiently serious violations’.^[24] What the ILC considered ‘sufficiently serious’ is not explained, and it also seems strange that such a crucial point was only mentioned in the commentary and not addressed in the article itself, which on its face criminalised all acts of aggression.
The approach taken in General Assembly Resolution 3314 to this point should also be noted. Adopted in 1974 after many years of negotiations, Resolution 3314 sets out a definition of aggression.^[25] Article 5(2) of that Resolution reverts back to the approach taken by the Nuremberg Charter, noting that ‘[a] war of aggression is a crime against international peace’. In other words, despite the broader range of acts of aggression defined in the other articles, the Resolution makes clear that only a war of aggression can give rise to criminal responsibility.
Both General Assembly Resolution 3314 and the ILC’s 1996 draft code therefore recognise that only some acts of aggression committed by a state will involve individual criminal liability.

IV. THE EMERGENCE OF THE THRESHOLD CLAUSE – THE GERMAN PROPOSALS IN THE PREPARATORY COMMISSION OF THE INTERNATIONAL CRIMINAL COURT

The different approaches to criminalisation of aggression continued in proposals made in the Preparatory Commission of the International Criminal Court (‘PrepCom’). For example, the Russian proposal put forward to PrepCom in 1999 was to criminalise ‘planning, preparing, initiating, carrying out a war of aggression’.^[26] This approach is clearly drawn from the Nuremberg jurisprudence.
A German proposal, which appears to be the origin of the threshold language, took a slightly different approach. Rather than referring to a ‘war of aggression’, it proposed to criminalise involvement in

an armed attack directed by a State against the territorial integrity or political independence of another State when this armed attack was undertaken in manifest contravention of the Charter of the United Nations with the object or result of establishing a military occupation of, or annexing, the territory of such other State or part thereof by armed forces of the attacking State.^[27]

The German proposal thus contained a more general description of a State use of force which would prima facie result in individual criminal liability, but limited the applicability of this general description by two distinct qualifiers. The first qualifier was through the use of the threshold language providing that the use of force must be ‘undertaken in manifest contravention of the Charter of the United Nations’. The second qualifier looked at the result of the armed attack, that is, it limited the crime to involvement in acts of aggression that resulted in the occupation or annexation of another State’s territory by armed forces.
In explaining this proposal, the German discussion paper notes that the definition should focus on the ‘obvious and indisputable cases’, citing the aggressions committed by Hitler and the invasion and annexation of Kuwait on the orders of Saddam Hussein in August 1990. This was seen as of the utmost importance, to avoid the definition leading to possible frivolous political accusations, and to avoid the definition ‘negatively affect[ing] the legitimate use of armed force in conformity with the Charter of the United Nations’.^[28]
A subsequent German discussion paper in 2000 elaborated somewhat on this reasoning. It explained that the crime should cover attempts to ‘take over’ or to destroy another state or parts thereof ‘with the assembled and well-prepared power of its entire military apparatus’. The paper noted that such attacks would be ‘clearly without any justification under international law’. Moreover, they would share a number of characteristics. They would be of a particular magnitude and dimension and ‘of a frightening gravity and intensity’, would lead to ‘the most serious consequences’ such as extensive loss of life or destruction and would ‘pursue objectives unacceptable to the international community as a whole, such as annexation, mass destruction, annihilation, deportation or forcible transfer of the population.’ The paper noted that such armed attacks would be ‘in manifest violation of the Charter of the United Nations’. Germany considered that the international instruments dating back to the Nuremberg Charter suggested

a narrow concept of the crime of aggression, fully in line with what has been identified, in essence, as an aggressive, large-scale armed attack on the territorial integrity of another State, clearly without justification under international law.^[29]

The German proposal can be seen as an attempt to move away from the Nuremberg language of ‘wars of aggression’ or ‘invasions’ towards a definition that referred to ‘acts of aggression’.^[30] To avoid criminalising any and every act of aggression and maintain consistency with historical precedents, the German proposal limited individual criminal liability to those acts which met the two qualifiers, being firstly the threshold language of a ‘manifest violation’, based on the gravity and indisputably illegal nature of the act of aggression and secondly, the object or result of the act of aggression.

V. THE WORK OF THE SPECIAL WORKING GROUP ON THE CRIME OF AGGRESSION

Of these qualifiers, only the first, the threshold language, remains in the current draft of the definition of aggression developed by the SWGCA. The language has changed somewhat, referring to a ‘manifest violation’ instead of a ‘manifest contravention’ and also providing that the manifest nature of the violation is determined by its ‘character, gravity and scale’.
The second qualifier in the original German proposal, referring to the object or result of the act of aggression, does not appear in the current draft. Similar language to the second qualifier was retained in the 2002 Chairman’s paper on proposals for the crime of aggression, which represented the output of the PrepCom’s work on aggression.^[31] This paper contained a threshold clause identical to the current draft, except for the use of the word ‘flagrant’ instead of ‘manifest’, but also proposed three options based on the second qualifier in the German proposal.^[32]
Option two in the 2002 Chairman’s paper was to add the words:

and amounts to a war of aggression or constitutes an act which has the object or the result of establishing a military occupation of, or annexing, the territory of another State or part thereof.^[33]

This option would have closely resembled the German proposal by limiting acts of aggression attracting criminal liability by reference to the object or result of the act. Option one was similar to Option two, but differed in that acts of aggression with the object of military occupation or annexation were listed as examples of acts of aggression, leaving open the possibility that other acts of aggression may also qualify.
Option three was to do ‘neither of the above’. This option ultimately prevailed in subsequent meetings of the SWGCA. In discussions in the Princeton inter-sessional meeting in June 2006, the predominant view was that limiting the crime of aggression to ‘aggressive wars’ by including the reference to a war of aggression would be too restrictive.^[34] Similarly, a preference for not including a reference to the object or result of the aggression being to establish a military occupation or annexation emerged.^[35]
In the SWGCA discussions in January-February 2007, a similar approach was taken. Some support was expressed for language referring to the ‘war of aggression’ to utilise the Nuremberg precedent, but other delegations felt that this was too restrictive and ‘closely linked to the modalities of warfare in World War II and would unduly limit the scope of the crime of aggression’.^[36] As a result, the second qualifier proposed by the 1999 German proposal was removed from the current definition (although it is still referred to in a footnote).
In the author’s view, this approach is appropriate. As delegates in the SWGCA recognised, the modalities of warfare have changed since the Second World War. An act of aggression may no longer take the form of a conventional war, and may not have the object of annexation or occupation of a state, but may nonetheless have such serious consequences that it warrants criminal liability for those leaders committing it. For example, a nuclear strike on a State’s major cities would not result in annexation or occupation of a state’s territory, and a one-off attack may arguably not constitute a ‘war’. Such an attack would, however, appear to meet the key characteristics described in the German paper of those acts worthy of criminalisation, due to the mass destruction and loss of life. A similar point could be made in relation to other examples such as aerial bombardment or use of ballistic missiles or weapons of mass destruction. By moving away from use of the term ‘aggressive wars’ or use of the second qualifier in the German proposal relating to the object or result of the act of aggression, such uses of force are potentially encompassed within the crime of aggression.^[37]
However, there is also a strong argument that international law should only criminalise those acts which are clearly criminal. The Charter of the United Nations allows the use of force in cases of self-defence or where authorised by the Security Council, but the boundaries of what is permitted are not always clear. In the case of self-defence for example, the requirements of proportionality and imminence must be satisfied. Use of force by a state which does not meet these requirements may constitute an act of aggression. But is it acceptable to impose criminal liability on a leader who takes into account these requirements and commits a state to a certain use of force, if the Court, analysing the situation ex post facto, takes a different interpretation of international law? As the Rome Statute is intended to try those crimes which are of most serious concern to humanity as a whole,^[38] the author submits that such cases should not be criminalised. Likewise, cases which are small in scale, such as a minor border skirmish, may not be of sufficient scale to warrant criminal prosecution by the Court.
To avoid criminalising such acts of aggression, the role of the threshold clause in limiting the crime to acts which reach the threshold of a certain character, gravity and scale and constitute a ‘manifest violation’ of the Charter of the United Nations then becomes vital.

VI. THE EFFECT OF THE THRESHOLD CLAUSE IN THE CURRENT DEFINITION

It is clear from the German discussion paper that the German proposal was intended to limit criminalisation of involvement in acts of aggression to those state acts which reached a certain threshold of seriousness both in terms of the gravity and scale of the act and the character of the act as one clearly without justification under international law. This approach is pursued in the current draft through the use of the threshold clause by limiting criminalisation to an act of aggression ‘which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’.
In the author’s view, the plain meaning of the threshold clause achieves the intent of the German proposal by excluding both small-scale cases such as minor border skirmishes, but also by excluding cases where the legality of the state act is uncertain. A ‘manifest’ violation is a violation which is ‘clear’ or ‘obvious’. The words ‘by its character, gravity and scale’ make clear that the obvious nature of the violation refers not only to the size or magnitude of the act (scale), the seriousness of its consequences (gravity) but also to its character.
Although the term ‘character’ is not defined, it seems clear that this would include the legal character of the state act. A use of force by a state may be large in scale and have serious consequences, but where such use of force is permitted by international law (for example in self defence), it will not have the ‘character’ of a violation of the Charter of the United Nations. Uses of force which are not clearly or obviously outside the scope of what is permitted under international law will not be acts which by their character constitute a manifest violation of the Charter, and will be excluded by the threshold clause.
This interpretation, based on the plain meaning of the proposed language, is confirmed by the intention of the original German proposal from which the language originated, which was aimed at ‘obvious and indisputable’ cases that were ‘clearly without justification under international law’. The intention that such acts are excluded is also reflected in the records of the SWGCA which refers to the views of participants supporting the threshold clause that it would exclude ‘borderline cases’.^[39]
Although the term ‘borderline’ is not elaborated upon, in the author’s view, the reference to exclusion of ‘borderline’ cases in the reports of the SWGCA is intended also to refer to cases of uncertain legality. This can be seen by considering other cases which the ‘manifest violation’ requirement excludes, such as small-scale cases. It is not correct to say that inclusion of the threshold clause excludes borderline cases – it excludes cases which are of insufficient scale to warrant criminalisation. Including the threshold clause creates the potential for borderline cases in respect of scale, by excluding small-scale cases and creating the possibility that certain cases may or may not be considered ‘small-scale’. When the SWGCA refers to the threshold clause excluding ‘borderline’ cases, it must instead refer to cases which may or may not constitute an act of aggression, i.e. uses of force which are arguably permissible under international law.
This interpretation is confirmed elsewhere in the records of the SWGCA, where it refers to exclusion of cases ‘where there might be a degree of uncertainty (legality of the action)’^[40] or cases ‘falling within a grey area’.^[41]
The approach put forward in respect of the elements^[42] of the crime at the June 2009 inter-sessional meeting of states negotiating the crime of aggression confirms this intention. The Chair’s paper on elements, proposed a mental element for the crime of aggression of knowledge of factual circumstances which establish that the state act is an act of aggression and a manifest violation of the Charter, as opposed to a mental element requiring knowledge of law. The Chair’s paper on elements explained that although this may limit the availability of a mistake of law defence, this approach was justified as a mistake of law defence would be ‘very difficult to advance anyways, given that only “manifest” Charter violations, and no borderline cases, would fall under the Court’s jurisdiction due to the threshold requirement’.^[43] In other words, ‘borderline’ cases, or cases where the legality of the state act is uncertain, would be excluded by the threshold requirement, so a mistake of law defence, to be successful, would need to rely on a view of the law which was clearly and unambiguously wrong.
This approach was not objected to during the discussion of the Chair’s paper on elements at the June 2009 meeting, and in this context it was also reiterated that the threshold clause would ‘exclude situations that could fall within a legal grey area’.^[44]
The consistently expressed intention of States advocating for the inclusion of the threshold clause is therefore that it excludes not only small-scale acts but also excludes borderline cases where the illegality of the state act is uncertain. Although the interpretation of the threshold clause will ultimately be for the Court’s judges to decide in a particular case, the best interpretation appears to be that it meets the requirements of the German proposal in limiting the scope of the crime to those acts which are large scale, obvious and undisputable violations of international law.

VII. CONCLUSION

In summary, states negotiating the crime of aggression amendments to the Rome Statute have moved away from the Nuremberg approach of criminalising a leader’s involvement in a ‘war of aggression’. The shortcomings of the Nuremberg approach, including the lack of definition as to what would constitute a ‘war’ and the need for the definition to remain robust enough to cover acts of aggression which are not acts of conventional warfare, suggest that a “new” approach is needed. The “new” approach discussed in the SWGCA is not, however, entirely new. It has been a matter of debate since the time of Nuremberg – as evidenced by the debates among delegates to the London Conference itself.
This approach defines the crime of aggression in respect of an act of aggression more broadly, but limits the scope of individual criminal liability to those acts that meet the threshold of an act ‘which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. In other words, it limits liability to an act of aggression by a state that meets a certain scale and gravity and which is clearly a violation of international law. This approach, contained in language which has resulted from many years of discussions and compromise among states involved in the negotiations, seems sufficient to balance the objectives of maintaining a definition that is flexible and robust enough to apply to future cases, while excluding from the scope of the crime those cases not sufficiently serious to warrant criminal prosecution.

^[∗] Senior Legal Officer, Office of International Law, Attorney-General’s Department, Australian Government. The views expressed in this paper are those of the author and do not necessarily represent the views of the Australian Government. The author wishes to thank Sophie Vasenszky for her assistance in researching this paper.
^[1] Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945).
^[2] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, United Nations, 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945).
^[3] The current draft is contained in Report of the Special Working Group on the Crime of Aggression, Appendix I, 30-32, UN Doc ICC-ASP/7/20/Add.1, and reads ‘For the purposes of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.’
^[4] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, United Nations, 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945).
^[5] Art 6(a).
^[6] Roger Clark, ‘Nuremberg and the Crime Against Peace’ (2007) 6 Washington University Global Studies Law Review 527, 529-535.
^[7] Convention for the Definition of Aggression, 3 July 1933, 147 LNTS 69 (entered into force 16 October 1933).
^[8] For a description of the negotiations at the London Conference, see also Benjamin B Ferencz, Defining International Aggression: The Search for World Peace (1975) vol 1, 40-41.
^[9] Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946, published at Nuremberg, Germany, 1947 (hereinafter Nuremberg Judgment).
^[10] Ibid, 192-4.
^[11] Ibid.
^[12] Control Council Law No. 10 for the Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, reproduced in Trials of War Criminals before the Nuremberg Military Tribunals, United States Government Printing Office, 1951, vol III, XVIII.
^[13] United States of America v. Ernst von Weizsäcker et al, Judgment, Trials of War Criminals before the Nuremberg Military Tribunals, United States Government Printing Office, 11-13 April 1949, vol XIV, 308.
^[14] Grant M Dawson, ‘Defining Substantive Crimes within the Subject Matter Jurisdiction of the International Criminal Court: What is the Crime of Aggression?’ (1999-2000) 19 New York Law School Journal of International and Comparative Law 413, 431-2.
^[15] Phani Dascalopoulou-Livada, ‘The Crime of Aggression: Making Operative the Jurisdiction of the ICC – Tendencies in the PrepCom’ (2002) Proceedings of the 96^th Annual Meeting of the American Society of International Law 185, 187. Dawson, above n 14 at 431, makes a similar point when he states that ‘[t]he terms “war of aggression” and “aggressive war” are synonymous with the term, “aggression”’, but he does not, however, elaborate on this point.
^[16] Ferencz, above n 8, 41.
^[17] Formulation of the Principles recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, GA Res 177 (II), UN GAOR, 2^nd sess, 123^rd plen mtg, UN Doc A/Res/177 (II) (1947).
^[18] Yearbook of the International Law Commission, vol II, 131-7.
^[19] Ibid 135.
^[20] Although the remainder of Article 2 included as a crime against peace several state acts which may also have constituted an act of aggression, such as annexation of another state’s territory.
^[21] Yearbook of the International Law Commission, 1991, vol II (Part Two), 95. The code was renamed ‘Draft Code of Crimes against the Peace and Security of Mankind’ in 1987.
^[22] Yearbook of the International Law Commission, 1993, vol II (Part One), 64. The United Kingdom expressed misgivings about the article and felt that the wording needed ‘careful adaptation in order to prescribe clearly and specifically those acts which attract individual criminal responsibility’, ibid 101.
^[23] International Law Commission, Thirteenth Report on the Draft Code of Crimes against the Peace and Security of Mankind, 40-41, UN Doc. A/CN.4/466 (1995).
^[24] Yearbook of the International Law Commission, 1996, vol II (Part Two), 42-43.
^[25] Resolution on the Definition of Aggression, GA Res 3314, UN GAOR, 34^th sess, 2319^th plen mtg, UN Doc A/Res/3314 (1974).
^[26] Compilation of Proposals on the Crime of Aggression submitted at the Preparatory Committee on the Establishment of an International Criminal Court (1996-1998), the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998) and the Preparatory Commission for the International Criminal Court (1999), 23, UN Doc PCNICC/1999/INF/2 (1999).
^[27] Ibid 24. This proposal was based on an earlier German proposal put forward in 1997 to the Court’s Preparatory Committee, the forerunner of PrepCom, see ibid, 12. The slight differences in wording of the two proposals are not relevant for the purposes of this paper.
^[28] Ibid, 6.
^[29] Proposal submitted by Germany: The Crime of Aggression: A Further Informal Discussion Paper, UN Doc PCNICC/2000/WGCA/DP.4 (2000).
^[30] In regard to the scope of individuals potentially covered by the crime, however, the current definition is narrower than the Nuremberg precedent – see Kevin Jon Heller ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ (2007) 18 European Journal of International Law 477.
^[31] Report of the Preparatory Commission for the International Criminal Court (continued), Addendum Part II: Proposals for a Provision on the Crime of Aggression, UN Doc PCNICC/2002/2/Add.2 (2002).
^[32] The paper limited the scope of the crime to ‘an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations.’
^[33] Report of the Preparatory Commission, above n 31, 3.
^[34] Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, UN Doc ICC-ASP/5/SWGCA/INF.1, 7.
^[35] Ibid.
^[36] Report of the Special Working Group on the Crime of Aggression, ICC-ASP/5/35, Annex II, 11.
^[37] It should be noted that the list of acts in Article 8bis(2), based on United Nations General Assembly Resolution 3314, may also provide guidance as to the scope of what constitutes an ‘act of aggression’ for the purposes of the crime of aggression. Many of the acts are acts which may constitute a ‘war’ in a conventional sense. However, it is beyond the scope of this paper to look in detail at the effect of this list and its interaction with the more generic definition in the chapeau of Article 8bis(2).
^[38] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, (entered into force 1 July 2002), preamble and art 5(1).
^[39] The intent of the threshold clause to exclude ‘borderline’ cases was noted in reports of the SWGCA’s deliberations in June 2006 (Informal Inter-Sessional meeting of the Special Working Group on the Crime of Aggression, above n 34, 6), January-February 2007 (Report of the Special Working Group on the Crime of Aggression, above n 36, 11) and February 2009 (Report of the Special Working Group on the Crime of Aggression, above n 3, 22.
^[40] Discussion Paper 3: Definition of Aggression in the context of the Statute of the ICC, UN Doc ICC-ASP/4/32, Annex II.D,[3].
^[41] Report of the Special Working Group on the Crime of Aggression, ICC-ASP/6/20/Add.1, Annex II, 4.
^[42] Elements of crimes are adopted by the Assembly of States Parties to assist the court in the interpretation and application of the articles defining the crimes under the Court’s jurisdiction – Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, (entered into force 1 July 2002), art 9.
^[43] Informal Inter-Sessional Meeting on the Crime of Aggression 8-10 June 2009: Non-paper by the Chairman on the Elements of Crimes, 28 May 2009, <http://www2.icccpi.int/iccdocs/
asp_docs/SWGCA/Non-paper-Elements-of-the-CoA-28May2009-ENG.pdf> at 28 September 2009, 5-6.
^[44] Informal Inter-Sessional Meeting on the Crime of Aggression, hosted by the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, at the Princeton Club, New York, from 8 to 10 June 2009, UN Doc ICC-ASP/8/INF.2, 5-6.