Contents - Constitutional Court of Georgia

176
Michael J. Glennon
Yet, as with the SWGCA’s definition of “act of aggression,” vexing questions attend the meaning
of “crime of aggression.” “Planning” and “preparation” encompass a wide range of political and
military activity, much of it relating to the coordination of tactics and strategy in military operations
that are conceived in no particular context. It is often impossible to know whether the surrounding
circumstances would permit such activities properly to be labeled a “crime of aggression.” (This may
be why the definition in Resolution 33l4 provided in preambular text that “the question whether
an act of aggression has been committed must be considered in the light of all the circumstances of
each particular case.” 159 ) Would it, for example, have constituted a “crime of aggression” for NATO
planners to draw up plans to bomb Baghdad prior to the Iraqi invasion of Kuwait on the possibility
that such an invasion was possible? Or to “plan” or “prepare” to launch intercontinental ballistic
missiles against the Soviet Union, on the possibility that the Soviet Union might launch such an attack
itself? Or to draw up plans for the possible invasion of Cuba during the Cuban Missile Crisis?
Military planners often devise contingency plans or preparations for defensive, retaliatory operations
that can nonetheless be used, at least in part, in launching a first strike. Viewed with no factual
context and apart from any strategic objective, such plans could be subject to a wide variety of
interpretations. Is such contingent planning or preparation in and of itself a “crime of aggression”?
Moreover, much of what every modern defense ministry does is, at least indirectly, “preparation”
for the use of armed force; that is, after all, why defense ministries exist. Not only weapons procurement
and combat activities but healthcare, housing, retirement, and social services for military personnel
and their families all are arranged with the ultimate objective of enhancing force readiness
so that the armed forces can achieve whatever military mission policymakers decide upon. Much
preparation, in fact, is increasingly aimed at supporting military operations undertaken in conjunction
with U.N. peacekeeping forces. No reasonable defense planner can know, under the SWGCA’s
definition of the crime of aggression, where the line is to be drawn between the workaday world of
defense ministry exertions and the commission of a prosecutable crime of aggression.
Finally, in modern democracies, preparation for armed conflict engages more than military and
defense ministry personnel. Intelligence agencies provide a wide variety of information to defense
planners that advance military objectives. Diplomats lay the groundwork for military action by attracting
allies. Legislators appropriate money for the military, approve weapons systems used in
given conflicts, authorize the use of force, and oversee the conduct of hostilities. Lawyers advise
policymakers what use of force is lawful. Who among them incurs criminal liability for planning or
preparing the crime of aggression? Where is the line drawn?
The SWGCA purports to limit the number of such military and political officials who could incur
criminal liability by restricting prosecution to those persons “in a position effectively to exercise
control over or to direct the political or military action of a State.” 160 But this line is anything but
bright. In the illustrative enumeration of incidents involving the use of armed force that would con-
159 Resolution 33l4, supra note 43, Annex.
160 See ICC, supra note l56, at 2.