Contents - Constitutional Court of Georgia

186
Michael J. Glennon
The implications of Security Council exclusivity are plain. The Charter requires, again, that “Members
of the United Nations agree to accept and carry out the decisions of the Security Council in
accordance with the present Charter.” 198 Members’ obligation to accept and carry out the decisions
of the Security Council would be traduced if Members entered into a treaty, such as the Rome Statute,
that permitted the prosecution of a state’s leaders for aggression in the face of an implicit or
explicit finding by the Security Council that no aggression had occurred. Under such circumstances,
the obligations imposed by the U.N. Charter would conflict with obligations imposed by the Rome
Statute, and the obligations imposed by the Charter would prevail—a conclusion reinforced by the
Rome Statute itself, which provides that any amendment to the Statute defining the crime of aggression
“shall be consistent with the relevant provisions of the Charter of the United Nations.” 199
The Charter thus presents the states party to the Rome Statute with an impossible choice: include
the Security Council in the decision to prosecute 200 and create inexorable retroactivity problems, or
exclude the Council from that decision and create a structure incompatible with the Charter. The
dilemma is accentuated by the Rome Statute’s requirement that the ICC’s interpretation and application
of the law “be consistent with internationally recognized human rights.”2 201 How is the ICC to
prosecute a crime of aggression when to do so would breach the most fundamental of international
human rights norms, the principle of legality? The only escape is to amend the Charter to incorporate
a sufficiently specific and politically acceptable definition of aggression—something that no
one, after eight decades of effort, has been able to devise.
VI. WHY THE EFFORT TO DEFINE AGGRESSION FAILED
Why has the effort to arrive at a reasonable definition of aggression failed? Not, as G.G. Fitzmaurice
wrote, because the concept of aggression “is one which is inherently incapable of precise
definition.” 202 As a strictly legal matter, no reason exists why “aggression,” or any other crime, cannot
be defined with sufficient specificity to meet the requirements of the legality principle. Within
the limits of language and the inevitability of marginal imprecision, lawmakers are fully capable of
controlling the meaning of concepts they create. Criminal offenses are artifacts of human endeavor.
198 U.N. Charter art. 25.
199 Rome Statute, supra note 4, art. 5(2). Meron notes that “[t]he delegations understood this qualification as an acknowledgement of
the Security Council’s power to make the determination as to whether an act of aggression has occurred.” Meron, supra note l89, at 2.
200 Inclusion of the Security Council would also create a two-tier jurisprudence concerning aggression; the Permanent Five Members of
the Council, wielding the veto, will hardly allow a finding of aggression to be made with respect to themselves or their allies, effectively
placing one group of states formally above the law.
201 Rome Statute, supra note 4, art. 2l(3); see supra text accompanying note 79.
202 G.G. Fitzmaurice, The Definition of Aggression, l INT’L & COMP. L.Q. l37, l38 (l952) (explaining the failure of the International Law Commission
to reach agreement on a definition).