Contents - Constitutional Court of Georgia

188
Michael J. Glennon
have insisted upon a broad definition that includes all, or nearly all, potential forms of aggression.
These tend to be states that see themselves historically as victims of aggression. Other states have
insisted upon a narrower definition, concerned that an expansive definition would permit the prosecution
of acts such as those enumerated above in Part IV. These tend to be states that do not see
themselves as historic victims of aggression. The former group, largely incapable of projecting force,
prefers a broad definition and sees accepting a narrow one as capitulation to historically powerful
states and an implicit acceptance of the abusive use of force. The latter group, largely capable of
significant force projection or allied with militarily powerful states, prefers a narrow definition and
sees a broad one as depriv 210 the deliberations of the International Law Commission, 211 and the
Rome Conference, 212 the latter group prevailed, at least in the sense of preventing the adoption of a
broad definition. In the SWGCA, however, the former group prevailed. As the number and variety of
the forms covered by the definition grew, a generic, all-encompassing description became progressively
vaguer—and legal difficulties multiplied. The zone of potential agreement between the two
groups proved to be miniscule.
These differences are amplified by underlying cultural differences over whether a state’s political
and military leaders should be prosecuted. Some states, by tradition or legal prohibition, do
not prosecute former leaders for crimes committed in the course and scope of their official duties—even
before their own courts. Others do. 213 For those that do, the possibility of transferring
former leaders to an international tribunal for trial could still be a politically monumental step that
generates enormous domestic controversy. For those that do not, the possibility of doing so is all
but unthinkable. The zone of possible agreement is, here again, miniscule.
Given the failure of states to reach agreement on a specific, substantive core of conduct that a
definition might delineate, the SWGCA chose to paper over differences in the hope that a consensus
might emerge in the future. But in the imposition of criminal punishment, the papering over of
differences is precisely what the principle of legality prohibits. Potential defendants have a right to
know the specific elements of a crime before their conduct occurs—not when they are charged or
tried, after a consensus has finally emerged. Nowhere is this more true, as indicated earlier, than
within the constitutional jurisprudence of the United States, where these retroactivity difficulties
would pose grave problems.
210 See SOLERA, supra note 38, at 43-78.
211 See Report of the International Law Commission on the Work of Its 46th Session, supra note l84.
212 Most delegations supported a narrow definition proposed by Germany, while Middle Eastern states favored a broader definition based
upon Resolution 33l4. See Schofield, supra note 62, at 2l; SOLERA, supra note 38, at 36l.
213 See ROSANNE VAN ALEBEEK, THE IMMUNITY OF STATES AND THEIR OFFICIALS IN INTERNATIONAL CRIMINAL LAW AND INTERNATION-
AL HUMAN RIGHTS LAW l67-l74 (2008); Thilo Rensmann, Impact on the Immunity of States and their Officials, in THE IMPACT OF HUMAN
RIGHTS LAW ON GENERAL INTERNATIONAL LAW l5l, l57-l60 (Menno Kamminga & Martin Scheinin eds., 2009).