Contents - Constitutional Court of Georgia

190
Michael J. Glennon
year after being ratified by seven-eighths of the states party. 218 If a particular state party does not
accept the definition, the ICC may not exercise jurisdiction with regard to any violation committed
by nationals of that particular state party or committed on its territory, 219 and that state party has
a right to withdraw from the Statute with immediate effect. 220 This “opt-out” option is available to
every state that becomes a party to the Statute before the amendment takes effect. Thus, even if
the SWGCA’s definition were to become part of the Rome Statute, the right to opt out could still
become available to the United States should it become a party.
Perhaps U.S. political leaders take solace in all this and the belief that, if a broad definition such as
the one proposed by the SWGCA should survive this procedural gauntlet and ultimately be adopted,
senior U.S. officials will nonetheless be safe because the United States is not a party to the Rome
Statute. If so, their sense of security could be mistaken. If such a definition were included in the
Statute, it is possible that U.S. military and political leaders could be prosecuted for the crime of
aggression even if the United States remains a nonparty. This is not certain; the Statute on its face
is contradictory. Article l2l(5) provides, again, that “[i]n respect of a State Party which has not accepted
the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by
the amendment when committed by that State Party’s nationals or on its territory.” The Statute also
provides that, in the event of ambiguity, it “shall be interpreted in favour of the person being investigated,
prosecuted, or convicted.” 221 Yet under Article l2(2)(a) of the Statute, the ICC may exercise
jurisdiction if “[t]he State on the territory of which the conduct in question occurred” has accepted
the ICC’s jurisdiction. U.S. military action that constitutes a crime of aggression under the SWCGA’s
definition could occur on such a state’s territory, and the state could then refer the matter to the ICC
for prosecution. Moreover, it is doubtful whether immunity would attach; conflicting provisions of
the Rome Statute could be reconciled either way. 222
A solution to this conundrum once emerged. For years, the establishment of a permanent international
criminal court was linked to the definition of the crime of aggression. 223 States gradually
came to understand that the establishment of such a court was possible only by separating the
two questions. They chose, in Niebuhr’s words, “a pragmatic approach to political and economic
questions which would do credit to Edmund Burke, the great exponent of the wisdom of historical
experience.” 224 The Rome Statute is the result. What triumphed in the SWGCA, however, was very
different; its definition of aggression embodies, in Niebuhr’s phrase, “the abstract rationalism of
the French Revolution.” 225 What triumphed was reversion to the sort of offense for which victims
were then guillotined, treasonous crimes such as “suspicious opinions” or “nostalgia for the ancien
218 Id. art. l2l(4).
219 Id. art. l2l(5).
220 Id. art. l2l(6).
221 Id. art. 22(2).
222 See supra note l62.
223 See G.A. Res. ll87 (XII) (Dec. ll, l957).
224 NIEBUHR, supra note 6, at 89.
225 Id.