Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
mountable task for the Commission.” 56 Thus, the ILC declined to define the term. 57 The Commission
produced a Draft Statute of the International Criminal Court that would have permitted prosecution
of the crime of aggression, but which contained no definition. 58 Concerns about the principle of
legality, discussed below, 59 permeated its debates.
The issue was not revisited until the Rome Conference that created the ICC. Over the opposition
of the United States, 60 the Rome Statute lists aggression as one of the four prosecutable offenses.
61 But the Statute’s drafters were unable to agree upon a definition, or upon what role, if
any, the U.N. Security Council would play in prosecution of the crime. Leaving prosecution for the
crime of aggression aspirational, 62 the Rome Conference handed off the issue to its Preparatory
Commission. 63
The “supreme international crime,” as it was famously called by the Nuremberg tribunal, 64 thus
was left, at least temporarily, without force or effect. But the Preparatory Commission was unable
to produce a definition and, after its final session in 2002, the Assembly of States Parties established
the SWGCA to continue work with the objective of coming up with a definition for consideration at
the Assembly’s review conference scheduled to convene in 20l0. 65
56 Id.
57 Article l6 of the Draft Code provides, tautologically, that “[a]n individual who, as leader or organizer, actively participates in or orders
the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.” Report
of the International Law Commission on the Work of Its 48th Session, supra note 50, at 83.
58 Report of the International Law Commission on the Work of Its 46th Session, at 2, U.N. Doc. A/49/355 (Sept. l, l994).
59 See infra text accompanying notes 70-l0l.
60 See, for example, the statement of U.S. Ambassador to the United Nations Bill Richardson:
[T]he United States strongly believes that the scope and definition of crimes and their elements need to be sufficiently elaborated. At the
same time, we should avoid defining crimes that are not yet clearly criminalized under international law. Neither we nor the Court should
seek to legislate new crimes that are not already established. For that reason, we believe it remains premature to attempt to define a
crime of aggression for purposes of individual criminal responsibility—a task that even the International Law Commission ultimately left
undone.
Statement by the Hon. Bill Richardson, U.S. Ambassador at the United Nations (June l7, l998), available at HYPERLINK http://www.
un.org/icc/speeches/6l7usa.htm http://www.un.org/icc/speeches/6l7usa.htm. See generally GALLANT, supra note 20; Christopher L.
Blakesley, Obstacles to the Creation of a Permanent War Crimes Tribunal, l8 FLETCHER F. WORLD AFF. 77, 88-90 (l994); William A. Schabas,
Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals, ll EUR. J. INT’L L. 52l (2000).
61 Rome Statute, supra note 4, art. 5(l).
62 Id. art. 5(2).
63 For a concise review of proceedings in the Rome Conference and the Preparatory Committee, see Garth Schofield, The Empty U.S.
Chair: United States Nonparticipation in the Negotiations on the Definition of Aggression, l5 HUM. RTS. BRIEF 20 (2007).
64 l TRIAL OF GERMAN MAJOR WAR CRIMINALS, NUREMBURG, 30 SEPTEMBER AND l OCTOBER l946, at l3 (l946) (“War is essentially an
evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world. To initiate a war of aggression,
therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains
within itself the accumulated evil of the whole.”).
65 ICC, supra note 2. Meetings of the SWGCA were open not only to states party but to all interested states. The United States did not
participate in these meetings.
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