Contents - Constitutional Court of Georgia

180
Michael J. Glennon
is not bound by (and under the terms of that entity’s enabling treaty, the U.N. Charter, cannot be
bound by) any exogenous definitional limits that purport to circumscribe its discretion to determine
the existence of aggression. Because the Security Council is, in other words, possessed of broad
latitude under the Charter to determine for itself whether conduct in a given instance constitutes
an act of aggression, 176 the imposition of punishment for such conduct would inevitably be ex post
facto. No specific standards guide its determination; whether it will find an “act of aggression” in a
given case is inevitably fact – dependent and speculative. 177 The Council has wide leeway to render
decisions grounded upon what ultimately are policy judgments; but “certainly,” the U.S. Supreme
Court has said, “a criminal conviction ought not to rest upon an interpretation reached by the use of
policy judgments rather than by the inexorable command of relevant language.” 178 Policy judgments
imply broad discretion; broad discretion precludes clear and precise notice. Kenneth Gallant aptly
summarizes the notice problem created by Security Council inclusion:
Notice requires not only that a law has been in existence but also that it has been applicable
to the actor at the time of the act. If the law was not applicable to the actor, then the actor had
no notice of the requirement to conform his or her behavior to the standard set out in the law. 179
Absence of notice gives rise to the threat of discriminatory prosecution; the teaching of the U.S.
Supreme Court in a seminal vagueness case is directly on point. The Court noted:
[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application. 180
Delegating the question of whether prosecution is permissible to the Security Council on an “ad
hoc and subjective basis” raises precisely the danger of arbitrary and discriminatory application.
The question can be labeled as “procedural” or “jurisdictional,” as the SWGCA prefers, or as something
else, but changing the label does not change the substance of the problem: it is a due process
problem and a legality problem, akin to prosecuting the crime of loitering only if the specific
conduct in question is afterwards denominated loitering by an act of the city council. 181 Contrary
176 “What standards would the Security Council use in determining aggression in an ICC case? One never knows, but there would be great
pressure on the Security Council to apply the definition in the ICC Statute, once that definition is finally thrashed out.” Stein, supra note
l73, at l2. However, “the Security Council has essentially ignored the General Assembly’s definition of aggression.” Id.
177 Absent requisite Security Council action or inaction, the ICC, ex hypothesi, would not have been established in a manner that would
legally authorize it to try the case, and in this sense would not be (in the requirement of Article 8(l) of the American Convention on Human
Rights) an “impartial tribunal, previously established by law.” American Convention on Human Rights, supra note 83, art. 8(l).
178 M. Kraus & Bros. v. United States, 327 U.S. 6l4, 626 (l946).
179 GALLANT, supra note 20, at 20 (footnotes omitted).
180 Grayned v. City of Rockford, 408 U.S. l04, l08-09 (l97l) (footnotes omitted).
181 The problem did not arise in connection with the various ad hoc criminal tribunals or with referral by the Security Council under Article
l3(b) of the Rome Statute (which triggered the ICC indictment of President Omar al-Bashir of Sudan) because, under principles of
universal jurisdiction, the crimes with which defendants were charged were prosecutable in preexisting national courts. See AMNESTY
INT’L, UNIVERSAL JURISDICTION: THE DUTY OF STATES TO ENACT AND IMPLEMENT LEGISLATION (200l); HUMAN RIGHTS WATCH, BEL-
GIUM: QUESTIONS AND ANSWERS ON THE ANTI- ATROCITY LAW (2003), available at HYPERLINK http://www.hrw.org/sites/default/
files/reports/belgium-qna.pdf http://www.hrw.org/sites/default/files/reports/belgium-qna.pdf (noting that most states have given