Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
ment on a draft definition of the crime of aggression. 4 The treaty that set up the court, called the
Rome Statute, provides for prosecution of that crime, but the framers of the Statute were unable
to agree upon a definition. Prosecution of that crime was suspended until the Statute could be
amended to include a definition. 5 The Assembly of States Parties will take up the Working Group’s
proposed definition at its Review Conference in May 20l0 in Kampala, Uganda. 6
I suggest in this Article that the proposed definition would constitute a crime in blank prose—one
that would run afoul of basic international human rights norms and domestic guarantees of due
process in its disregard of the international principle of legality and related U.S. constitutional prohibitions
against vague and retroactive criminal punishment. The argument in favor of criminalizing
aggression is, in Reinhold Niebuhr’s felicitous phrase, “a logic which derives the possibility of an
achievement from its necessity.” 7
Proponents appear to believe it is necessary that the crime of aggression be defined; therefore,
they believe, the crime of aggression is perforce capable of being defined. But necessity, moral or
otherwise, does not imply juridical achievability. Repeated efforts to define aggression foundered
throughout the twentieth century as continuing political and cultural differences among states
have prevented the formation of a consensus. Strong and weak states have long been sharply
divided over when the use of force is appropriate and whether their own military and political
leaders ought to be prosecuted for such an offense. The high level of specificity needed to impose
individual criminal liability—as opposed merely to guide state conduct—has therefore proven
unattainable.
The ambiguous definition now under consideration papers over those differences. Prosecution
under it would turn upon factors that the law does not delineate, rendering criminal liability unpredictable
and undermining the law’s integrity. The proposed definition cannot be reconciled with the
Rome Statute’s own requirement that the court apply the law consistently with internationally recognized
human rights. 8 The definition’s ambiguity broadens its potential reach to the point that, had
it been in effect for the last several decades, every U.S. President since John F. Kennedy, hundreds of
U.S. legislators and military leaders, as well as innumerable military and political leaders from other
countries could have been subject to prosecution.
These difficulties, I further suggest, would be magnified by including the political roulette wheel
that is the U.N. Security Council in the decision to prosecute, as some have urged. Excluding the
Council, on the other hand, would create an irresolvable conflict with the Charter. That the United
States is not a party to the Rome Statute does not render all this academic: U.S. military and politi-
4 U.N. Dep’t of Pub. Info., Press Conference on Special Working Group on Crime of Aggression (Feb. 13, 2009), http://www.icc-cpi.int/NR/
rdonlyres/9FCD3A51-6568-41DF-819F-5075C3857523/0/UNDOCPressConferenceonSWGCAENG.pdf.
5 Rome Statute of the International Criminal Court art. 5(2), July l7, l998, 2l87 U.N.T.S. 90 [hereinafter Rome Statute].
6 Press Release, ICC, Assembly of States Parties Concludes Its Eighth Session (Nov. 30, 2009), HYPERLINK http://www.icc-cpi.int/NR/exeres/
l56lAlD0-l6DE-4C78-A745-92ADA49A6A5A.htm http://www.icc-cpi.int/NR/exeres/l56lAlD0-l6DE-4C78-A745-92ADA49A6A5A.htm.
7 REINHOLD NIEBUHR, THE IRONY OF AMERICAN HISTORY 89 (Univ. Chi. Press 2008) (l952).
8 Rome Statute, supra note 4, art. 2l(3).
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