Contents - Constitutional Court of Georgia

The Blank-Prose Crime of Aggression
stitute acts of aggression, set out above, myriad political and military leaders of the aggressor states
would be prosecutable for the crime of aggression if the SWGCA definition were applied to them.
The list of potential defendants would include, among others, all U.S. Presidents and Secretaries of
Defense since John F. Kennedy, including President Obama, and numerous foreign leaders who effectively
exercised control over or directed the political or military action of their countries during
the other acts of aggression listed above. 161 Where the list would end—how far down into defense,
foreign ministry and intelligence bureaucracies, and parliaments and legislatures the prosecutorial
arm might reach—is not clear. “[I]n most democratic societies it is almost impossible to pinpoint
responsibility for a certain action to just a few individuals since large numbers of bureaucrats are
usually involved in preparing and shaping decisions.” 162 Intelligence analysts, diplomats, legislators,
and lawyers all sometimes “control” political and military action in the sense that, but for their conduct,
the action in question would not have occurred. (It is, moreover, unclear whether immunity
would attach, given the Rome Statute’s ambiguity on the matter.) 163
Again, not all acts of aggression give rise to crimes of aggression; a crime of aggression is committed
incident only to an act of aggression that, in the SWGCA’s parlance, “constitutes a manifest
violation of the United Nations Charter.” If an act of aggression were authorized by the Security
Council or permitted under Article 5l, it would therefore remain an act of aggression but would not
provide the predicate for a crime of aggression. Two requirements must thus be met before an act
becomes a prosecutable crime: it must violate the Charter, and the violation must be manifest.
Which of the acts of aggression described above violated the Charter and which did not? Because
the Security Council has authorized use of force in only a handful of instances and because the
defensive exception of Article 5l cannot logically be available to all sides in a given armed conflict,
nearly all of these hundreds of occurrences necessarily involved the unlawful use of force under the
Charter by some state. Yet where the violation actually occurred is usually impossible to determine.
In almost all of the acts described, the “aggressor state” argued either that it acted in self-defense
or pursuant to Security Council authorization. (A prominent exception is NATO’s l999 Kosovo opera-
161 The list would also include the Chairmen of the Joint Chiefs of Staff at the time of the military operations in question—plus, perhaps,
hundreds of members of Congress who voted for resolutions authorizing the use of force against North Vietnam, Afghanistan, and Iraq.
Foreign leaders would include Tony Blair, Jacques Chirac, Gerhard Schroeder, and other NATO political and military leaders in office at
the time of the l999 attack on Yugoslavia; Anthony Eden, Guy Mollet, and David Ben-Gurion and the British, French and Israeli military
leaders at the time of the Suez attack; Ho Chi Minh, Valéry Giscard d’Estaing, Julius Nyerere, Vladimir Putin, Dmitry Medvedev, and many
others. Note that the restrictions of temporal jurisdiction would prevent the ICC from actually prosecuting these people for the crime of
aggression.
162 Schuster, supra note l0, at 2l.
163 Article 98(l) of the Rome Statute provides that “[t]he Court may not proceed with a request for surrender or assistance which would
require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic
immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of
the immunity.” Rome Statute, supra note 4, art. 98(l). However, Article 27, entitled “Irrelevance of official capacity,” provides as follows:
l. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head
of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case
exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. [I]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international
law, shall not bar the Court from exercising its jurisdiction over such a person.
Rome Statute, supra note 4, art. 27.
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