Contents - Constitutional Court of Georgia

150
Michael J. Glennon
cal leaders could still be prosecuted for the crime of aggression even if the United States maintains
its position refusing to join. Given enduring political realities and the profound and continuing differences
among states concerning when the use of force is appropriate, the effort to criminalize
aggression along the proposed lines therefore should be dropped.
Part II of this Article outlines the recurrent failure of efforts to define the concept of aggression
and lays out the newly proposed definition. Part III describes the prohibition in international law
and U.S. law against the creation of vague and retroactive crimes. Part IV evaluates the proposed
definition by applying it to various historical incidents involving the use of force and then by measuring
its wording against the retroactivity prohibitions outlined in Part III. Part V assesses proposals
concerning the potential role of the Security Council in prosecuting the crime, concluding that the
inclusion of the Council in the prosecutorial procedure without Charter amendments would violate
retroactivity restrictions, whereas its exclusion would violate the Charter. Part VI analyzes why the
concept of aggression has been so difficult to define, suggesting that the impediments have been
cultural and political rather than linguistic or legal. Finally, Part VII suggests that it would be in the
interest of the United States to oppose adoption of the proposed definition in appropriate proceedings
of the Assembly of States Parties of the ICC, since its adoption might impose criminal liability
on U.S. leaders even if the United States were to remain a nonparty.
II. A BRIEF HISTORY OF EFFORTS TO DEFINE AGGRESSION
A. From Kellogg-Briand to Nuremberg
The accusation of aggression has accompanied armed conflict for centuries, 9 but international
law did not prohibit states from engaging in aggression until the conclusion of the Kellogg-Briand
Peace Pact in l928. 10 Even then, the term was not defined 11 or even used: the Pact outlawed “recourse
to war for the solution of international controversies,” and its parties “renounce[d] it, as an
instrument of national policy in their relations with one another.” 12 The Pact limited only the conduct
of states party and contained no provision imposing criminal liability upon individuals. It was
widely accepted and widely disregarded; all the major belligerents of World War II were parties to
the Pact.
9 See generally ROBERT L. O’CONNELL, OF ARMS AND MEN: A HISTORY OF WAR, WEAPONS, AND AGGRESSION (l989).
10 General Treaty for Renunciation of War as an Instrument of National Policy art. I, Aug. 27, l928, 46 Stat. 2343, 94 L.N.T.S. 57 [hereinafter
Treaty for Renunciation of War].
11 In l933, the Soviet Union proposed a definition of aggression at a conference on disarmament, but negotiations ended with no agreement.
See Matthias Schuster, The Rome Statute and the Crime of Aggression: A Gordian Knot in Search of a Sword, l4 CRIM. L.F. l, 4 (2003).
12 Treaty for Renunciation of War, supra note 9, art. I.