Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
applying, the list of acts or situations [is] unnecessary.” 155 If not—if the unincorporated provisions of
Resolution 33l4 have no application to the SWGCA’s recommended definition, and if Resolution 33l4
is cited merely, in effect, to be polite or ethical, or to establish authoritative pedigree or genealogy—
then the list of acts set out in paragraphs 2(a) to (g) is exhaustive, and the generic definition that
precedes the list is merely a description of the class that those acts occupy exclusively. No additional
conduct, in other words, might then be prosecuted by the ICC as a crime of aggression.
Which interpretation is correct? One can only guess. Based upon the wording of the SWGCA’s
definition, reasonable arguments can be made on both sides. The SWGCA’s object seemingly was
to compromise by leaving the matter open to question. If that was its purpose, it succeeded. The
SWGCA, perhaps concerned about cracking the frail coherence of its consensus, declined to make
the hard decision as to what is covered and what is not, leaving that decision to the prosecutor and
judges of the ICC and, perhaps, to the Security Council, after the defendant’s conduct has occurred.
By choosing “act” rather than “war” of aggression as the predicate for a “crime of aggression,”
the SWGCA’s definition thus incentivizes conduct of the sort that Elizabeth Wilmshurst warned
against: “the situation that whenever a State [has] a dispute with another which include[s] use of
force by that other, the State [will] be able to refer the situation to the international criminal court,
alleging participation by individuals.” 156 The result would be a markedly enhanced risk of discriminatory
enforcement and politicized prosecution.
B. The SWGCA’s Definition of “Crime of Aggression”
“Crime of aggression” is defined more narrowly. Under the SWGCA’s proposal, not every “act
of aggression” gives rise to a “crime of aggression.” A “crime of aggression” refers, again, to 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.” 157
The definition closely tracks, but is not identical to, the charge of “crime against the peace” prosecuted
at Nuremberg, which consisted of “planning, preparation, initiation or waging of a war of
aggression.” 158 The crime of aggression, as defined, can be committed only by political and military
leaders, not rank-and-file administrators or soldiers. And it embraces only nontrivial and clear-cut
violations of the Charter, which implies that acts of aggression authorized by the Security Council or
carried out for self-defense under Article 5l are not prosecutable.
155 JULIUS STONE, AGGRESSION AND WORLD ORDER 80 (l958).
156 Elizabeth Wilmshurst, Definition of the Crime of Aggression: State Responsibility or Individual Criminal Responsibility?, in THE INTER-
NATIONAL CRIMINAL COURT, supra note l05, at 93, 96. She further warned that “[t]his could create in effect an inter-State court out of
a court that we have all agreed should have jurisdiction only over individuals. This is not a result to be welcomed by those who have for
long fought for the establishment of the court.” Id.
157 See ICC, Discussion Paper on the Crime of Aggression Proposed by the Chairman, at 2, ICC-ASP/7/SWGCA/INF.l (Feb. l9, 2009).
158 Agreement for the Prosecution and Punishment of the Major War Criminals, supra note l3, Annex art. VI(a) (emphasis added).
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