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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.
The Blank-Prose Crime of Aggression integrity and existing political independence of all Members of the League” 170 — is irretrievably vague. To use the apt phrase of the U.S. Supreme Court, it fails to provide “ascertainable standards of guilt.” 171 Contrary to the requirement of the Rome Statute itself, the definition is not “consistent with internationally recognized human rights.” 172 V. THE ROLE OF THE SECURITY COUNCIL IN PROSECUTING A CRIME OF AGGRESSION Can this infirmity be cured by any of the options under consideration concerning Security Council participation or nonparticipation in the prosecutorial decision? 173 Many different proposals have been advanced with respect to the role to be played in that decision by the Security Council (or other U.N. entities such as the General Assembly or the International Court of Justice). 174 All come down to two broad alternatives: inclusion or exclusion. However, neither of those options is legally viable: including the Council in the prosecutorial procedure without Charter amendments would violate international law’s legality principle, whereas excluding the Council would violate the Charter. An elaboration follows. A. Including the Security Council Inclusionary proposals include suggestions of the sort advanced by the SWGCA that would, for example, permit the ICC to investigate a potential crime of aggression only if the Security Council (or the General Assembly or the International Court of Justice) has previously made a determination that an act of aggression has been committed by a State, or would permit the ICC prosecutor to proceed only if “[t]he Security Council has adopted a resolution under Chapter VII of the Charter requesting the Prosecutor to proceed with an investigation.” 175 In these and similar schemes, the ICC prosecutorial process would be triggered by the action or inaction of some external entity that 170 League of Nations Covenant art. l0. The Covenant, notably, made no effort either to define aggression or to outlaw the use of force. 171 Palmer v. City of Euclid, 402 U.S. 544, 545 (l97l) (per curiam). 172 Rome Statute, supra note 4, art. 2l(3). 173 See generally Paula Escarameia, The ICC and the Security Council on Aggression: Overlapping Competencies, in THE INTERNATIONAL CRIMINAL COURT, supra note l05, at l33. 174 For comprehensive summaries of those proposals, see Carrie McDougall, When Law and Reality Clash—The Imperative of Compromise in the Context of the Accumulated Evil of the Whole: Conditions for the Exercise of the International Criminal Court’s Jurisdiction over the Crime of Aggression, 7 INT’L CRIM. L. REV. 277, 322 (2007); and Mark S. Stein, The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive Is the Security Council’s Power To Determine Aggression?, l6 IND. INT’L & COMP. L. REV. l, 3 (2005). 175 Press Release, supra note 68. 179
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Contents Françoise Tulkens THE EUR
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Avtandil Demetrashvili PARADIGMS 1
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András Sajó CONSTITUTIONALISM AND
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