Contents - Constitutional Court of Georgia

178
Michael J. Glennon
tion, about which NATO leaders’ legal explanation has generally been: the less said, the better. 164 ) In
which of those cases, then, can it objectively be said that those states were wrong, and that a “manifest
violation” of the Charter occurred? Given that the use of force rules of the Charter have, again,
been violated anywhere from 200 to 680 times since l945, 165 are they still good law? 166 Volumes
have been written on these issues, reflecting abiding and widespread disagreement on the breadth
of the self-defense exception; the truth is that in most of those and other instances, a person of
common intelligence would necessarily have to guess which side violated the Charter. The need
for guesswork is not enough to meet the requirements of due process and the principle of legality.
The SWGCA seeks to eliminate its definition’s pervasive vagueness by barring prosecution for
crimes of aggression that are minor or marginal. It attempts to do so by requiring that the violation
in question be “manifest” in its “character, gravity and scale.” 167 But these qualifiers do not provide
the legally requisite specificity or precision; they merely push the inquiry further up the semantic
ladder to focus on what is “manifest” (rather like Yogi Berra’s supposed suggestion that close plays
at first base be eliminated by moving first base back one step). 168 A statute permitting the prosecution
of only clear-cut, blatant instances of “impropriety” would still be vague. This is the central
difficulty in seeking to eliminate vagueness merely by announcing that marginality is excluded: it is
impossible to know from the terms at issue what within their reach is marginal and what is essential.
Following the bombing of a Berlin nightclub in l986 in which two U.S. servicemen were killed,
for example, the United States bombed Libya in retaliation (apparently killing a daughter of Colonel
Gaddafi). 169 Did this act represent, because of its “character, gravity and scale,” a “manifest” violation
of the Charter? Does “character” mean that suspected Libyan involvement in the nightclub
bombing must be taken into account? Does “gravity” imply that the (limited) impact on regional
stability is to be considered? Does “scale” mean that the constricted length of the air strikes is a
factor? Was force, for that matter, actually used against Libya’s “territorial integrity” or “political
independence”? Did the attack on U.S. servicemen represent an armed attack on the United States
within the meaning of Article 5l of the Charter? As was true with respect to questions concerning
the other historical uses of force detailed in Part II above, the answers to these questions remain a
matter of subjective judgment; throwing in a “manifestness” requirement does not magically eliminate
imprecision.
The conclusion is thus unavoidable: the SWGCA’s definition of the crime of aggression—a reconstruction
of the burnt timbers of the League of Nations Covenant, which provided that “[t]he Members
of the League undertake to respect and preserve as against external aggression the territorial
164 For the argument that NATO’s Kosovo action represented a violation of the Charter, see GLENNON, supra note l29, at l3-35.
165 This is the number set out in the U.N. report A More Secure World. See Report of the High-Level Panel, supra note l39, at l40 n.4. Other
studies have reported similar results. See supra note l4l.
166 In my view, no. See GLENNON, supra note l29, at 84-l00, 207-09; Michael J. Glennon, How International Rules Die, 93 GEO. L.J. 939,
986 (2005).
167 See supra note 65.
168 See Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. l255,
l336 (l988).
169 Edward Schumacher, Wide Damage Seen; Daughter of Qaddafi Is Said To Have Died, N.Y. TIMES, Apr. l6, l986, at Al.