Making Aggression a Crime Under Domestic Law: On the Legislative Implementation of Article 8bis of the ICC Statute 9462655901, 9789462655904

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International Criminal Justice Series

Volume 32

Making Aggression a Crime Under Domestic Law On the Legislative Implementation of Article 8bis of the ICC Statute

Annegret Hartig

International Criminal Justice Series Volume 32

Series Editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

The International Criminal Justice Series aims to create a platform for publications covering the entire field of international criminal justice. It, therefore, deals with issues relating, among others, to: – – – –

the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law.

It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars. Editorial Office Prof. Dr. Moritz Vormbaum University of Münster Faculty of Law Bispinghof 24-25 48143 Münster, Germany [email protected]

Annegret Hartig

Making Aggression a Crime Under Domestic Law On the Legislative Implementation of Article 8bis of the ICC Statute

Annegret Hartig Berlin, Germany

ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal Justice Series ISBN 978-94-6265-590-4 ISBN 978-94-6265-591-1 (eBook) https://doi.org/10.1007/978-94-6265-591-1 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the author 2023 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

To my parents

Acknowledgments

This book is based on a dissertation which was defended at the University of Hamburg on 8 December 2022. The manuscript was written before the Russian invasion of Ukraine. For the publication, I included these key events and related publications to the extent permitted. I would like to thank my supervisor, Prof. Dr. Florian Jeßberger, for his support. His invaluable and prompt feedback on chapters at various stages of the writing process greatly shaped my work. I am grateful for his continuous encouragement and keen interest in my project during a time where the crime of aggression was sidelined in the academic debate. His exceptional commitment after the Russian invasion of Ukraine is the reason why I was able to publish my book within one year. I would also like to thank my second supervisor, Prof. Dr. Dr. Milan Kuhli, for his prompt evaluation. In addition, I am thankful for Professor Roger Clark, his friendship, encouragement and support. I am deeply grateful to the University of Hamburg. It funded the completion of my Ph.D. thesis and numerous periods of research at the Assembly of States Parties to the International Criminal Court, the International Law Commission and the Lauterpacht Centre for International Law. With the Magdalene Schoch Mentoring Program for female academics, the University of Hamburg also offered a great network and support. This gave me the chance to receive helpful feedback from Prof. Dr. Claus Kreß, who kindly accepted me as a mentee. In addition, I would like to thank the Fulbright Commission for funding and enriching my experience as a visiting scholar at Columbia Law School. I am grateful for Prof. Lori Damrosch and her support prior and during my time at Columbia Law School. Her colloquium on international criminal law during my LL.M. and the guest lectures on the Kampala Amendments by Stefan Barriga and Prof. Harold Koh inspired me to write a dissertation on the crime of aggression. I also thank the Lauterpacht Centre for International Law and Prof. Eyal Benvenisti for accepting and supporting me as a visiting scholar in the middle of the pandemic. I am indebted to Dr. David Donat-Cattin and the Parliamentarians for Global Action, as well as to Dr. Anne Dienelt, for connecting me to the world beyond books at the Assembly of States Parties and the International Law Commission. This helped vii

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me to get a deeper understanding of how State delegates decided to activate the jurisdiction of the International Criminal Court over the crime of aggression and how the International Law Commission works. My periods of research gave me the opportunity to meet scholars from the field and to discuss relevant points for my research. I would like to thank everyone who took their precious time. This journey is intrinsically linked to the friendships I made along the way. I would like to thank those who proofread chapters of my thesis, namely Dr. Paolo Caroli, Anne Gahleitner, Dr. Julia Geneuss, Matilda Gillis, Melissa Gregg, Liam Halewood, Andrew Howard, Dr. Kalika Mehta, Claire O’Connell, Darren Peterson and Judy Wang. I also thank Isabelle Peart for proofreading the whole manuscript. For their great moral support and the enriching discussions over the years, I would like to thank Eva Assouline, Dr. Frederike Fründ, Dr. Barbara Germann, Raphael Jureczko, Dr. Jan-Robert Schmidt and Dr. Valérie Suhr. Finally, I would like to take this opportunity to thank my family. The steady progress during the pandemic is primarily due to my sister, her husband and their weekly reviews. Technical support was provided by my father. The finalization of this project would not have been possible without the loving support of my brother and my parents. Berlin, Germany December 2022

Annegret Hartig

Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Relevance of the Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Aim, Structure and Approach of this Book . . . . . . . . . . . . . . . . . . . . . 1.3 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 Domestic Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 The Practice of the Implementers of the Kampala Amendments . . . 1.5 The Particularities of the Crime of Aggression for the Purpose of Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.1 Leadership Crime and Based on a State Act . . . . . . . . . . . . . . 1.5.2 Restricted Jurisdictional Regime of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.3 Limited State Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Overview of the Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 An Obligation to Criminalize Aggression Under Domestic Law? . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Obligation and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 Hardness and Softness of Law: Binding Form, Precision and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3 Working Definition of “Aggression” . . . . . . . . . . . . . . . . . . . . 2.2 Domestic Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Hard Legal Obligation Under Constitutional Law to Criminalize Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 A Fortiori Obligation from the Constitutional Prohibition of Incitement to War or Propaganda for War . . . 2.2.3 Inference from Other Pacifist Constitutional Provisions . . . . 2.2.4 Inference from the Duty to Protect Fundamental Rights . . . . 2.2.5 Conclusion to Domestic Constitutional Law . . . . . . . . . . . . .

1 2 4 6 6 7 7 9 9 10 10 11 14 17 18 20 22 24 24 24 26 28 29 31

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2.3 ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 No Explicit Legal Obligation to Criminalize . . . . . . . . . . . . . 2.3.2 Implied Legal Obligation to Criminalize Due to the Principle of Complementarity? . . . . . . . . . . . . . . . . . . . 2.3.3 Coercive Potential of Complementarity Irrespective of an Obligation: The Threat of Judicial Interventions . . . . . 2.3.4 Conclusion to the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 A Fortiori Obligation from the Obligation to Prohibit Propaganda for War Under Article 20(1) of the ICCPR? . . . 2.4.2 From the Obligation to Ensure Human Rights to the Obligation to Criminalize Serious Violations . . . . . . . 2.4.3 Human Rights Relevance of the Crime of Aggression . . . . . 2.4.4 Territorial Scope of the Obligation to Criminalize Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.5 Conclusion to International Human Rights Law . . . . . . . . . . 2.5 Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 The Classical Inductive Approach: State Practice and Opinio Iuris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 The Relationship Between the Obligation to Criminalize, the Obligation to Exercise Jurisdiction and the Obligation to Prosecute (or Extradite) . . . . . . . . . . . . 2.5.3 Limited Aggression-Specific State Practice Supported by Opinio Iuris on the Obligation to Criminalize . . . . . . . . . . 2.5.4 No General Customary Obligation to Criminalize “Crimes Under International Law” Under Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.5 Conclusion to Customary International Law . . . . . . . . . . . . . 2.6 Ius Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.1 Definition and Characteristics of a Ius Cogens Norm . . . . . . 2.6.2 Methodological Difference of the Ius Cogens Avenue in Comparison to the Customary International Law Avenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.3 Aggression as a Crime Based on a Ius Cogens Norm . . . . . . 2.6.4 Effects of a Ius Cogens Norm: An Obligation to (Extradite or) Prosecute and an Inherent Obligation to Criminalize? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.5 Conclusion to Ius Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32 33 36 41 46 48 50 51 53 60 64 66 66

67 68

74 75 76 77

77 78

82 87 89 90

3 The Core Wrong of the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . 105 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 3.2 Approaching the “Core Wrong” of a Crime . . . . . . . . . . . . . . . . . . . . 107

Contents

3.2.1 The Offense Definition and the “International Element” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The Theory on Protected Legal Interests (Rechtsgüterlehre) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Protected Legal Interests and Type of Attack . . . . . . . . . . . . . 3.3 State Sovereignty as a Protected Legal Interest . . . . . . . . . . . . . . . . . . 3.3.1 The State Interests Mentioned in Article 8bis(2) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 The Underlying Acts Against Another State in Article 8bis(2) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 The Need to Move Beyond the Bilateral Sphere . . . . . . . . . . 3.4 International Peace as a Protected Legal Interest . . . . . . . . . . . . . . . . 3.4.1 The Multifaceted Concept of Peace . . . . . . . . . . . . . . . . . . . . . 3.4.2 The Preambular Presumption of the ICC Statute: Peace as an Overarching Protected Legal Interest . . . . . . . . . 3.4.3 The Underlying Prohibition of the Use of Force as a Means to Protect Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.4 The Crime of Aggression as the Post-Nuremberg Version of the “Crime Against Peace” . . . . . . . . . . . . . . . . . . . 3.5 Individual Interests as Protected Legal Interests . . . . . . . . . . . . . . . . . 3.5.1 The Protection of Individual Interests by Crimes Under International Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.2 The Humanization of International Law . . . . . . . . . . . . . . . . . 3.5.3 Humanized Sovereignty: The Protection of State Sovereignty to Protect Rights of Those Living Within the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.4 The “Manifest” Threshold Cannot be Fulfilled Without Affecting Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.5 Lower Level of Protection of Individual Interests by Triggering International Humanitarian Law . . . . . . . . . . . 3.5.6 Conclusion to Individual Interests as Protected Legal Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 The Type of Attack on the Protected Legal Interests . . . . . . . . . . . . . 3.6.1 Use of Armed Force by a State . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.2 The Aggressive Use of Armed Force: A Manifest Violation of the Ius ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.3 Committed by Persons from the Leadership Circle of a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.4 Conclusion to the Type of Attack . . . . . . . . . . . . . . . . . . . . . . . 3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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107 109 110 112 112 113 114 114 115 116 116 118 119 120 122

125 127 133 136 138 138 140 144 147 148 150

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4 Mapping the Normative Gaps Under Domestic Law . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 An Illustration of the Limits of the “Minimalist Approach” to Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Types of Criminal Offenses Under Domestic Lex Lata . . . . . 4.1.3 The Reference and the Comparative Factors for the Gap Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.4 No Normative Gaps Due to the Direct Applicability of Aggression as a “Crime Under International Law”? . . . . . 4.2 Treason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 General Understanding of Treason . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Protected Interests: “Oldest Crime Against the State” . . . . . . 4.2.3 Type of Attack: Force of a Certain Threshold, Attack “from Within”, Owing Allegiance . . . . . . . . . . . . . . . . . . . . . . 4.3 Other Ordinary Criminal Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Criminal Offenses that Capture Individual Acts that Make Up the State Act of Aggression . . . . . . . . . . . . . . . 4.3.2 Protected Interests: Primarily Individual Interests . . . . . . . . . 4.3.3 Type of Attack: No Integration in a State Act or of Ius ad Bellum Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 The Combatant’s Privilege as an Obstacle? . . . . . . . . . . . . . . 4.3.5 Conclusion to Other Ordinary Criminal Offenses . . . . . . . . . 4.4 The “Preliminary Offenses” of Incitement to War and Propaganda for War as Informed by the ICCPR . . . . . . . . . . . . . 4.4.1 General Understanding of Incitement to War and Propaganda for War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Protected Interests: In Principle the Same as Those Violated by War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.3 Type of Attack: Preliminary Crime, Communicative Conduct, No Leadership Clause . . . . . . . . . . . . . . . . . . . . . . . . 4.5 The Crime of Aggressive War Modelled on the Nuremberg and Tokyo Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.2 Protected Legal Interests: In Principle the Same as Those Protected by the Kampala Definition . . . . . . . . . . . . 4.6 Genocide, Crimes Against Humanity and War Crimes as By-Products of Crimes of Aggression . . . . . . . . . . . . . . . . . . . . . . . 4.7 Crime of Aggression as a War Crime: “Excessive Attack” as a Gateway for Ius ad Bellum Considerations? . . . . . . . . . . . . . . . . 4.7.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7.2 Protected Interests: Civilians and International Peace . . . . . . 4.7.3 Type of Attack: Ius ad Bellum Violation Reflected in “Excessive Attack”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7.4 Conclusion to the Crime of Aggression as a War Crime . . . .

159 160 161 162 163 164 165 165 166 166 167 168 169 169 169 172 173 173 174 175 177 177 178 180 182 183 184 185 190

Contents

4.8 Crime of Aggression as a Crime Against Humanity: “Other Inhumane Acts” as a Gateway for Ius ad Bellum Considerations? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1 General Understanding: “Controlled Use of Analogy” for Assessing “Other Inhumane Acts” . . . . . . . . . . . . . . . . . . . 4.8.2 Protected Legal Interests: Civilians, Humanity and International Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.3 Type of Attack: Ius ad Bellum Violation Reflected in “Other Inhumane Act”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.4 Conclusion to the Crime of Aggression as a Crime Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Restricted Jurisdictional Regime of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Why the Jurisdictional Reach of the International Criminal Court Matters for Domestic Implementation . . . . . 5.1.2 The Restrictions of the “Ordinary” Jurisdictional Regime Depending on the Operationalization of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3 The Requirement of Consent from the Perspective of International Adjudication and Criminal Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.4 Chronological Structure and Focus on Jurisdictional Regime upon State Referral and Proprio Motu Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Rome Compromise: Single-Ratification Regime . . . . . . . . . . . . 5.2.1 Ratification by the Territorial State or National State of the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Drafting History: Compromise Between Universal Jurisdiction and More Consensual Forms of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Inclusion of Nationals of Non-States Parties Under Territorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4 Inclusion of Territory and Nationals of Non-States Parties by Ad Hoc Acceptance, Article 12(3) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.5 Difference in Reach in Case of a UN Security Council Referral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.6 Critical Account of the Jurisdictional Reach Under the Single-Ratification Regime . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 The Kampala Compromise: Soft Consent-Based Regime for States Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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5.3.1 In Principle: Single-Ratification Regime . . . . . . . . . . . . . . . . . 5.3.2 Ability for States Parties to Opt Out, Article 15bis(4) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Categorical Exclusion of Territory or Nationals of Non-States Parties, Article 15bis(5) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Possibility for Non-States Parties to Declare an Ad Hoc Acceptance Under Article 12(3) of the ICC Statute? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.5 Difference in Reach in Case of UN Security Council Referral, Article 15ter of the ICC Statute . . . . . . . . . . . . . . . . 5.3.6 Critical Account of the Jurisdictional Reach Under the Soft Consent-Based Regime for States Parties . . . . . . . . . 5.4 The New York City Resolution: Strict Consent-Based Regime with Opt-Out Option for States Parties? . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Content of the Activation Resolution . . . . . . . . . . . . . . . . . . . . 5.4.2 Drafting History: No Compromise between Strict Consent-Based Regime and Opt-Out Regime . . . . . . . . . . . . . 5.4.3 Legal Value of the Activation Resolution . . . . . . . . . . . . . . . . 5.4.4 Interpretation of Article 15bis(4) of the ICC Statute in Light of Its Amendment Procedure . . . . . . . . . . . . . . . . . . . 5.4.5 Critical Account of the Jurisdictional Reach Under the Strict Consent-Based Regime with Additional Opt-Out Option for States Parties . . . . . . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Options for Incorporating the Definition of the Crime of Aggression into Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 The Principle of Complementarity and the Decisions of Whether and How to Implement . . . . . . . . . . . . . . . . . . . . . 6.1.2 Implementation as an Act to Integrate an International Crime Definition into the Domestic Legal Order . . . . . . . . . . 6.1.3 The Advantages of Complete Implementation and Modified Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.4 The Different Understandings of the Principle of Legality as a Source of Tension . . . . . . . . . . . . . . . . . . . . . . 6.2 Implementation by Copying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Implementation by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Different Types of References as Illustrated by the Samoan Implementation . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Tensions with the Principle of Legality? . . . . . . . . . . . . . . . . . 6.3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Modified Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6.4.1 Over-Inclusive and Under-Inclusive Implementations . . . . . 6.4.2 Modifications with Respect to the Underlying Act of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.3 Modifications with Respect to the “Manifest” Threshold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.4 Modifications with Respect to the Leadership Clause . . . . . . 6.4.5 Modification with Respect to the Individual Conduct . . . . . . 6.4.6 Conclusion to Modified Implementation . . . . . . . . . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Legislative Specification of the Geographical Ambit of Domestic Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.1 Jurisdiction and Its Various Expressions . . . . . . . . . . . . . . . . . 7.1.2 The Lotus Case and the Framework of International Law for Domestic Criminal Jurisdiction . . . . . . . . . . . . . . . . . 7.1.3 Consequences of Excessive Implementation . . . . . . . . . . . . . 7.2 The Principles of Jurisdiction and Their Broader Categorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 The Nature of the Crime and Principles of Jurisdiction . . . . 7.2.2 Principles of Territorial and Extraterritorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 “Aggressor State Jurisdiction” and “Other State Jurisdiction”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Principle of Territoriality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 General Understanding and Applicability to the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 The Locus Delicti of the Crime of Aggression: Even “Third State” Jurisdiction due to the Ambiguous Constituent Element of “Gravity”? . . . . . . . . . . . . . . . . . . . . . 7.4 Nationality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 General Understanding and Applicability to the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 The Nationality of the Aggressor: Does Aggressor State Jurisdiction Equal Nationality Jurisdiction? . . . . . . . . . 7.5 Protective Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.1 General Understanding and Applicability to the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Whose Interests Are Affected: The Victim State and Its Allies? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Passive Personality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.2 Applicability to the Crime of Aggression: A Crime Committed Against Individuals? . . . . . . . . . . . . . . . . . . . . . . .

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Contents

7.7 Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.2 Closely Related Principle of Representation and Principle of Treaty-Based Jurisdiction . . . . . . . . . . . . . . . 7.7.3 Methodological Framework for Determining the Applicability to the Crime of Aggression Under Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.4 Inductive Approach: Aggression-Specific State Practice and Opinio Iuris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.5 Deductive Approach: Principle-Based Reasoning . . . . . . . . . 7.7.6 Conclusion: Applicability of Universal Jurisdiction to the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

344 344

8 Legal Challenges for Foreign Adjudicative Jurisdiction . . . . . . . . . . . . 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.1 Legal Challenges as a Response to the Unique Character of the Crime of Aggression? . . . . . . . . . . . . . . . . . . 8.1.2 Sovereignty as the Origin of Most Legal Challenges . . . . . . 8.1.3 Presumption of Congruency Between Prescriptive and Adjudicative Jurisdiction Unless Prohibitive Rule . . . . . 8.2 The Principle of Par in Parem non Habet Imperium . . . . . . . . . . . . . 8.2.1 The Claim in Article 8 of the 1996 Draft Code of Crimes of the International Law Commission . . . . . . . . . . 8.2.2 A Principle with a Different Original and an Uncertain Current Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 No General Practice Accepted as Law in Support of the Claimed Restriction to the Aggressor State . . . . . . . . . 8.2.4 Conclusion to the Principle of Par in Parem non Habet Imperium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Personal Immunity from Foreign Criminal Jurisdiction . . . . . . . . . . . 8.3.1 Rationale: Smooth Conduct of International Relations . . . . . 8.3.2 Limited Personal, Limited Temporal and Absolute Material Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.3 Applicability Even If Commission of Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.4 Conclusion to Personal Immunity . . . . . . . . . . . . . . . . . . . . . . 8.4 Functional Immunity from Foreign Criminal Jurisdiction . . . . . . . . . 8.4.1 Rationale: Consequence of State Immunity or Something Else? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.2 Limited Material, Broad Personal and Broad Temporal Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

403 404

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406 408 408 410 410 411 413 417 418 419 419 421 421 422 424 425

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8.4.3 Methodological Framework for Determining the (In-)Applicability to the Crime of Aggression Under Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.4 Legal Nature of Functional Immunity . . . . . . . . . . . . . . . . . . . 8.4.5 Inductive Approach: Aggression-Specific State Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.6 Deductive Approach: Principle-Based Reasoning . . . . . . . . . 8.5 The Monetary Gold Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.1 The Origin of the Doctrine: Contentious Proceedings of the International Court of Justice . . . . . . . . . . . . . . . . . . . . . 8.5.2 Extension of the Doctrine to All International Tribunals? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.3 Extension to Domestic Aggression Proceedings? . . . . . . . . . 8.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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427 429 430 449 457 458 458 459 461 463

Summary and Final Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473 Annex: Domestic Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507

Chapter 1

Introduction

Contents 1.1 Relevance of the Topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Aim, Structure and Approach of this Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 Domestic Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4 The Practice of the Implementers of the Kampala Amendments . . . . . . . . . . . . . . . . . . . . 1.5 The Particularities of the Crime of Aggression for the Purpose of Implementation . . . . . 1.5.1 Leadership Crime and Based on a State Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.2 Restricted Jurisdictional Regime of the International Criminal Court . . . . . . . . . 1.5.3 Limited State Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6 Overview of the Chapters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 4 6 6 7 7 9 9 10 10 11 14

Abstract Although the Russian invasion of Ukraine in 2022 appears to be the textbook example of the “crime of aggression”, the restricted jurisdictional regime under the ICC Statute prevents the International Criminal Court from extending criminal investigations to this crime. This creates the risk of substantive selectivity in international criminal justice. It selectively responds to some, but not all crimes under international law. States cannot address this risk by conducting domestic aggression trials if they do not have a substantive provision criminalizing aggression under domestic law. The legislative deficiency can be overcome for future aggression cases by making aggression a crime under domestic law, which is the central topic of this book. The chapter sets out the aim, structure and approach of the book. It clarifies the main terms and how it intends to include the legislative practice of 16 States that have incorporated the definition from Article 8bis of the ICC Statute into domestic law. By highlighting the particularities of the crime of aggression for the purpose of implementation, it underscores why academic debates from the early 2000s on the domestic implementation of genocide, crimes against humanity and war crimes can only be the starting point. It ends with an overview of the content considered in each chapter. Keywords Russian invasion of Ukraine · Restricted jurisdictional regime under the ICC Statute · Substantive selectivity · Crime of aggression · Crimes under © T.M.C. ASSER PRESS and the author 2023 A. Hartig, Making Aggression a Crime Under Domestic Law, International Criminal Justice Series 32, https://doi.org/10.1007/978-94-6265-591-1_1

1

2

1 Introduction

international law · Domestic implementation · Practice of the implementers of the Kampala Amendments · Germany and the crime of aggression · Particularities of the crime of aggression

1.1 Relevance of the Topic We are seeing Russian military operations inside the sovereign territory of Ukraine on a scale that Europe has not seen in decades…It is wrong. It is against the Charter. It is unacceptable. UN Secretary-General António Guterres, 24 February 2022

On 24 February 2022, Russian President Vladimir Putin announced that he had made the decision to carry out a “special military operation” in Ukraine.1 This euphemistic term refers to an “absurdity in the 21st century”2 – a full-fledged war of aggression. A State leader ordered the use of armed force against another sovereign country without any legal justification.3 There is no evidence substantiating the Russian allegation that genocide had been committed on Ukrainian territory prior to the invasion.4 Russia is not in a position to use force in self-defense under the UN Charter5 or with the alleged consent of the regions of Donetsk and Luhansk.6 After the brutal Russian invasion of Ukraine, there appears to be a growing understanding of why the International Military Tribunal at Nuremberg described the crime of aggression in 1946 as the “supreme international crime” that “contains within itself the accumulated evil of the whole”.7 Kyiv, Kharkiv, Mariupol and Bucha became synonymous with widespread destruction, terror, immeasurable human suffering and death. Thousands of Ukrainians have fled the country. Many have left family and friends behind who are needed to fight the Russian army. Putin warned from the beginning that there would be unprecedented consequences should third States stand in Russia’s way.8 Fears are growing that the conflict between Russia and Ukraine could devolve into World War III. This current catastrophe can be traced back to the 1

See Statement of the President of the Russian Federation, 24 February 2022: http://en.kremlin.ru/ events/president/transcripts/67843. Accessed 15 September 2022. 2 See Statement of UN Secretary-General António Guterres, 28 April 2022: https://www.un.org/sg/ en/content/sg/speeches/2022-02-24/statement-secretary-general-ukraine. Accessed 15 September 2022. 3 See Green et al. 2022; Kreß 2022; Members of the International Law Association Committee on the Use of Force 2022. 4 See ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia), Order, 16 March 2022, para 59. 5 Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter). 6 See Kreß 2022; Members of the International Law Association Committee on the Use of Force 2022; Open Society Justice Initiative 2022, paras 58 et seq. 7 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. 8 See Statement of the President of the Russian Federation, 24 February 2022: http://en.kremlin.ru/ events/president/transcripts/67843. Accessed 15 September 2022.

1.1 Relevance of the Topic

3

crime of aggression, the “original sin” of this conflict.9 By committing the crime of aggression, Putin showed his utter disrespect for the basic rule of any legal system: the prohibition of the use of force.10 As the International Criminal Court Chief Prosecutor Karim Khan emphasized, “[t]he law is above us, and if the law is not above us, there’s nothing below us, except the abyss.”11 This is why “international law cannot be a passive spectator” of the Russian invasion.12 Instead, “it needs to move with alacrity and to protect and to insist on accountability”.13 Despite the existing definition of the crime of aggression under the ICC Statute, the International Criminal Court cannot insist on accountability for those who allegedly committed a crime of aggression against Ukraine. The Court did move with alacrity to investigate with respect to allegations of war crimes, crimes against humanity and genocide.14 However, the restricted jurisdictional regime underpinning the crime of aggression prevents the Court from extending these investigations to the fourth crime listed under the ICC Statute.15 According to Article 15bis(5) of the ICC Statute, crimes of aggression committed on the territory of, or by nationals of, non-States Parties like Russia are excluded. This exclusion does not apply if the UN Security Council refers the situation to the International Criminal Court.16 Due to Russia’s veto power in the UN Security Council, however, a referral remains a near-certain impossibility without regime change in Russia. If the international community neither removes the jurisdictional restrictions from the ICC Statute, nor establishes a special aggression tribunal for Ukraine, there is a real risk that the wrong committed in this conflict would not be fully reflected in criminal trials. The warmongers could be held accountable for how they conducted this war. They could be held accountable for violations of the law applicable during armed conflicts. The origin of the war, in contrast, would go unpunished, despite being the clearest case of a crime of aggression since World War II. This creates a risk of substantive selectivity in international criminal justice. It would only respond to the commission of some, but not all, crimes under international law. States can address this risk of substantive selectivity and reduce the accountability gap by conducting aggression trials in domestic criminal courts. The situation in 9

See comment by Kreß, Virtual Roundtable: In Defense of a Democracy: Prosecuting Russian Aggression Against Ukraine, 25 May 2022: https://www.cfr.org/event/virtual-roundtable-defensedemocracy-prosecuting-russian-aggression-against-ukraine. Accessed 15 September 2022. 10 See O’Connell 2013, p. 89 whereby legal systems, irrespective of the domestic or international nature, have rules to restrict violence. 11 See Statement of ICC Chief Prosecutor Karim Khan, 27 April 2022. https://news.un.org/en/story/ 2022/04/1117132. Accessed 15 September 2022. 12 See ibid. 13 See ibid. 14 See https://www.icc-cpi.int/ukraine. Accessed 15 September 2022. 15 See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute), Article 5, which lists genocide, crimes against humanity, war crimes and the crime of aggression. 16 See ICC Statute, Article 15ter.

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1 Introduction

Syria has already shown that domestic courts can come to the rescue of international conscience. They can step in whenever the International Criminal Court is unable to exercise its jurisdiction and the international community refuses to establish a special tribunal.17 European States, like Germany18 and Sweden,19 held members of the Assad regime and Jihadists responsible for war crimes, crimes against humanity or genocide. The International Criminal Court, in contrast, has been blocked by the Russian and Chinese veto at the UN Security Council.20 In response to the Russian invasion, States like Ukraine, Poland, Lithuania and Latvia have already opened criminal investigations into the crime of aggression,21 while the International Criminal Court has been unable to do so. Other European States that initiated criminal investigations based on universal jurisdiction could not extend them to the crime of aggression. This is primarily due to the lack of a substantive provision criminalizing aggression under domestic law. This legislative deficiency, however, can be overcome for future cases by implementing the crime of aggression into domestic law. This is the central topic of this book.

1.2 Aim, Structure and Approach of this Book This book deals with the domestic implementation of the crime of aggression. It explores the main legal questions that arise when States make aggression a crime under domestic law. The approach of this book is a classical one. It follows the structure of the rich debate from Germany in the early 2000s regarding the legislative implementation of genocide, crimes against humanity and war crimes.22 The establishment of the International Criminal Court in 1998 led to a first “wave of implementation” of these crimes already defined under the ICC Statute. The German implementation greatly benefited from the involvement of legal experts. Scholars such as Werle assessed whether there are obligations or guiding principles under the ICC Statute that affect domestic implementation.23 He also laid bare the normative gaps of German criminal law and explained why it was unable to capture the core wrong of genocide, crimes against humanity and war crimes.24 Finally, he presented options for implementing 17

For the prospect for justice before the International Criminal Court, the options of an ad hoc Tribunal for Syria and the domestic courts that stepped up, see van Schaack 2020, pp. 179 et seq., 211 et seq. and 265 et seq. 18 For an overview, see Werle and Jeßberger 2020, paras 458 et seq. See, in particular, Higher Regional Court Koblenz, Judgment, 13 January 2022, 1 StE 9/19; Higher Regional Court of Koblenz, Judgment, 24 February 2021, 1 St 3/21. 19 See van Schaack 2020, pp. 298 et seq. 20 See Trahan 2020, pp. 262 et seq. 21 See Hartig 2022. 22 See, in particular, Kreß 2000; Satzger 2002; Werle 2000; Werle 2001. 23 Werle 2001, p. 886. 24 Ibid., Werle 2000, pp. 756 et seq. See also Kreß 2000, pp. 9 et seq.

1.2 Aim, Structure and Approach of this Book

5

them into domestic law.25 This assessment included the possibilities of modifying the definition found under the ICC Statute and the design of the geographical ambit of domestic jurisdiction.26 The latter raised the question of whether universal jurisdiction was applicable. The bill that eventually implemented genocide, crimes against humanity and war crimes into German law largely mirrors Werle’s considerations.27 This book applies Werle’s research structure to the previously omitted crime of aggression. The definition of the crime of aggression was only included in the ICC Statute in 2010. The book has the added value of making the rich German debate of the early 2000s accessible to an English-speaking audience.28 Since the crime of aggression is commonly considered to be different from other crimes under international law, however, there is a need to reassess the same questions relevant to domestic implementation. The next chapter will deal with the question of whether there is an obligation to criminalize aggression domestically.29 The subsequent chapters will explore the common normative gaps under domestic law, as well as the jurisdictional gaps under the ICC Statute with regard to the crime of aggression.30 These gaps underscore the need for implementing the crime of aggression into domestic law. In the final chapters, the book considers the operationalization of domestic implementation. This questions how to incorporate the definition of the ICC Statute into domestic law,31 as well as how to specify the geographical ambit of domestic criminal jurisdiction.32 The latter may be affected by potential prohibitive rules on the exercise of jurisdiction by domestic courts, such as immunities.33 In deference to the particularities of each domestic legal system, the book does not elaborate a specific proposal on how to implement the crime of aggression into domestic law. The approach of this book is implementation-oriented and thus geared towards practical action. Nonetheless, the application of the analytical structure to the crime of aggression requires the theoretical discussion of fundamental questions of public international law and international criminal law. They include the link between human rights law and the ius ad bellum,34 the determination of customary international law in light of limited State practice, the consequences of ius cogens in the field of 25

Werle 2001, pp. 886 et seq. Ibid., pp. 890 et seq. 27 See, e.g., the explanation why German criminal law was unable to capture the core wrong of the crimes and why there was a need for implementation, Deutscher Bundestag 2002, p. 12. 28 Which has previously shown interest in the German implementation of ICC Statute crimes. See, e.g., El Zeidy 2017, pp. 970 et seq. in which the German Code of Crimes Against International Law was a guiding instrument in the drafting of the Arab model law for the implementation of the ICC Statute. 29 See Chap. 2. 30 See Chaps. 3–5. 31 See Chap. 6. 32 See Chap. 7. 33 See Chap. 8. 34 This is the law that regulates the resort to the use of force, which is nowadays often called ius contra bellum due to the general prohibition on the use of force. 26

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1 Introduction

international criminal law, the effect of the humanization of international law on the understanding of the crime of aggression, the relevance of State consent for international criminal adjudication as well as the link between the classification as a “crime under international law”, universal jurisdiction and immunities.

1.3 Terminology The central terms of this research are the crime of aggression and domestic implementation.

1.3.1 Crime of Aggression Alongside genocide, crimes against humanity and war crimes, the crime of aggression constitutes one of the four “crimes under international law”. These crimes are defined by international law and give rise to individual criminal responsibility directly under international law.35 The crime of aggression was formerly known as the “crime against peace”, or the “crime of aggressive war”.36 It was the main charge against the German leaders at the Nuremberg Trials and against the Japanese leaders at the Tokyo Trials after World War II.37 In 1998, States established the permanent International Criminal Court but could not agree on the crime of aggression. In 2010, they finally included a definition of the “crime of aggression” in the ICC Statute and agreed on conditions for the Court’s exercise of jurisdiction at the Kampala Conference.38 The Kampala Amendments have been ratified by 44 of 123 States Parties.39 Article 8bis(1) of the ICC Statute defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” According to Article 8bis(2) of the ICC Statute, the underlying “act 35

Ambos 2021, p. 95; Cassese et al. 2013, p. 3; O’Keefe 2015, paras 2.34 and 2.49; Werle and Jeßberger 2020, para 97. 36 Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter), Article 6(a); Charter of the International Military Tribunal for the Far East, Directive of Douglas MacArthur, 19 January 1946 (IMTFE Charter), Article 5(a). 37 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950; IMTFE, Judgment, 12 November 1948 in Pritchard and Zaide 1981. 38 See Review Conference of the Rome Statute 2010. 39 As of December 2022. For the list of ratifications, see https://treaties.un.org/. Accessed 15 December 2022.

1.4 The Practice of the Implementers of the Kampala Amendments

7

of aggression” refers to “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. Broadly, Article 8bis of the ICC Statute penalizes the clearest and most serious violations of the prohibition of the use of force. As a “leadership crime”, it focuses on those most responsible for such violations. The Kampala Amendments possibly update the customary version of the crime of aggression in various aspects. They include acts of aggression short of war, they reject the need for a specific collective intent, and they require in the leadership clause “effective control or direction” instead of “shape or influence”.40 Due to the high threshold of 8bis(1) of the ICC Statute, however, the “pith of the Nuremberg legacy of ‘crimes against peace’ is preserved” in the manifest violation of the UN Charter, “notwithstanding the dissimilar outer linguistic crust” of the ICC Statute definition.41

1.3.2 Domestic Implementation Domestic implementation of this crime must be distinguished from ratification. By ratifying the Kampala Amendments, a State expresses its consent to be bound by these treaty amendments.42 The International Criminal Court can thus exercise jurisdiction over crimes of aggression committed by the nationals or on the territory of that State.43 By implementing the crime of aggression, as defined in the Kampala Amendments, into domestic law, a State creates the conditions for the exercise of jurisdiction by its domestic courts. The implementing State exercises the “jurisdiction to prescribe”. This refers to a State’s authority to lay down the requirements and the consequences of a criminal offense and the geographical ambit of criminal law in an abstract and general manner.44

1.4 The Practice of the Implementers of the Kampala Amendments The “principle of complementarity” considers the jurisdiction of the International Criminal Court to be merely complementary to domestic criminal jurisdiction.45 In the spirit of this principle, at least 16 States Parties have implemented the 40

On the question of whether the crime of aggression departs from customary international criminal law, see Kreß 2017, pp. 526 et seq. 41 Dinstein 2018, p. 298. 42 Schabas 2016, p. 1525. 43 See ICC Statute, Article 15bis. 44 See Jeßberger 2011, pp. 9 et seq. See also Geneuss 2013, p. 33; O’Keefe 2015, para 1.7. 45 See ICC Statute, preambular para 10, Article 1 whereby the International Criminal Court “shall be complementary to national criminal jurisdictions”.

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crime of aggression into domestic law since the adoption of the Kampala Amendments in 2010.46 These are mostly European States. Among the implementers are Afghanistan,47 Austria, Croatia, Cyprus, the Czech Republic, Ecuador, Estonia, Finland, Georgia, Germany, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. The majority had previously ratified the Kampala Amendments.48 Most States had experience from implementing other ICC Statute crimes.49 This may partially explain, for example, why most of the mentioned States apply their provisions on universal jurisdiction to the crime of aggression and the other core crimes alike.50 Regarding the definition of Article 8bis of the ICC Statute, the majority opted for a modified implementation.51 As we will see in detail, most of the modifications were of a technical or conceptual nature without changing the definition in substance.52 The book highlights the practice of these 16 implementers of the Kampala Amendments, particularly in the chapters that analyze the operationalization of domestic implementation.53 Due to limitations in language and accessibility, the book cannot provide a comprehensive comparative analysis of the implementing legislation. Instead, it takes a general approach. It focuses on existing domestic implementations for illustrative purposes, and places special emphasis on the well-documented German legislative process. It thereby accentuates the domestic implementation of a State which has a unique history when it comes to the crime of aggression.54 As the aggressor of two devastating world wars, Germany provoked a reaction of the international community which led to the birth of a “new international law”.55 This “new international law” is now described as “international criminal law” and generated the revolutionary idea to hold individuals – as opposed to States – responsible.56 German State leaders were the first individuals to be convicted for the crime of aggression.57 After World War II, Germany created a strong bulwark under domestic law against aggression. It is, for example, the only State with an explicit constitutional obligation 46

As of March 2022. After the Taliban took control of Afghanistan in 2021, however, previously enacted laws were no longer applied. This includes the implementing legislation from 2018. 48 Except for Afghanistan and Ecuador. 49 See Austria, Croatia, Cyprus, the Czech Republic, Ecuador, Estonia, Finland, Germany, the Netherlands, North Macedonia, Liechtenstein, Slovenia, and Samoa. 50 Austria, Cyprus, Georgia, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa, Slovenia. 51 See Chap. 6, Sect. 6.4. 52 See Chap. 6, Sect. 6.4.6. 53 See Chaps. 6 and 7. 54 See, in detail, Kreß 2015. 55 See the description of the French memorandum to the Peace Conference after World War I, Larnaude and de Lapradelle 1919, pp. 150 et seq. For the historical evolution of international criminal law, see Werle and Jeßberger 2020, paras 1 et seq. 56 On the influence of the horror of the Nazi tyranny on the acceptance of international criminal responsibility, Werle and Jeßberger 2020, para 3. 57 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950. 47

1.5 The Particularities of the Crime of Aggression …

9

to criminalize aggression.58 Germany is prominent as an advocate of international criminal law and was particularly vocal throughout the process that led to the inclusion of the definition of the crime of aggression in the ICC Statute.59 Due to this unique development from an aggressor State to an advocate of international criminal law, Germany offers an interesting example that deserves close attention throughout the book.

1.5 The Particularities of the Crime of Aggression for the Purpose of Implementation The reintroduction of the crime of aggression into the more mature field of international criminal law in 2010 could lead one to think that this book greatly benefitted from already-evolved academic debates. Debates on the domestic implementation of genocide, crimes against humanity and war crimes took place in the early 2000s. Due to the particularities of the crime of aggression, however, these academic debates can only be the starting point for this discussion. The particularities of the crime of aggression pose a considerable challenge to its domestic implementation. The particularities of the crime are linked to its definition, the restrictive conditions for the exercise of jurisdiction of the International Criminal Court and the limited State practice since World War II.

1.5.1 Leadership Crime and Based on a State Act The definition of the crime of aggression under Article 8bis of the ICC Statute reveals the particularities of the crime. It is a leadership crime,60 based on a State act of aggression61 and directed against State interests.62 The crime of aggression also constitutes the secondary norm to respond to violations of the ius ad bellum, which is the law that regulates the resort to the use of force.63 Other “crimes under international 58

See German Constitution, Article 26. See Kreß 2015, pp. 43 et seq.; Wasum-Rainer 2017, p. 1151. 60 Article 8bis(1) of the ICC Statute requires “a person in a position effectively to exercise control over or to direct the political or military action of a State”. 61 Article 8bis(2) of the ICC Statute requires for the underlying act of aggression “the use of armed force by a State”. 62 Article 8bis(2) of the ICC Statute requires the use of armed force against “the sovereignty, territorial integrity or political independence of another State”. 63 Article 8bis(1) requires “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations” and thereby mirrors the language of Article 2(4) of the UN Charter. This provision constitutes the basic norm of the ius ad bellum, nowadays more often called ius contra bellum. 59

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1 Introduction

law”, in contrast, can be committed by mid-level or low-level perpetrators. They are not always linked to the State. They are mostly based on acts directed against individuals and constitute secondary norms to violations of human rights law, or ius in bello, the law governing the conduct during armed conflicts. The leadership clause and the close connection to the State naturally raises the question of immunities for perpetrators of the crime of aggression. The “unique character” of the crime led the International Law Commission in 1996 to categorically reject the possibility of exercising jurisdiction for all States except for the national State of the aggressor.64 Perceiving the crime of aggression as a crime directed against State interests may also make it difficult to infer an obligation to criminalize from the obligation to protect fundamental rights or international human rights.

1.5.2 Restricted Jurisdictional Regime of the International Criminal Court The second particularity of the crime of aggression centers on the conditions for the exercise of jurisdiction of the International Criminal Court over this crime. These conditions are more restrictive compared to those applicable to genocide, crimes against humanity and war crimes.65 In a book dealing with domestic implementation, the restricted jurisdictional reach of the International Criminal Court is important due to the principle of complementarity. According to this fundamental principle of the ICC Statute, the Court exercises “complementary” jurisdiction if States are “unable” or “unwilling” to exercise jurisdiction.66 Restrictions on the complementary jurisdiction of the International Criminal Court affect the functioning of the system established by the ICC Statute. The restricted ability of the International Criminal Court to intervene may reduce the impact that complementarity normally has on the decision of States to implement ICC Statute crimes into domestic law. It may also increase the need for domestic legislation criminalizing aggression to avoid the risk of impunity.

1.5.3 Limited State Practice The third particularity is that there is only limited State practice on the exercise of jurisdiction over the crime of aggression. This may be due to the long dormancy of the crime of aggression following the post-World War II Nuremberg and Tokyo trials. Genocide, crimes against humanity and war crimes, in contrast, have been 64

Draft Article 8 as well as the Commentary thereto in International Law Commission 1996, para 14. 65 For details, see Chap. 5. 66 See ICC Statute, Article 17.

1.6 Overview of the Chapters

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more regularly prosecuted since the renaissance of international criminal law in the 1990s. When States Parties established the International Criminal Court at the Rome Conference in 1998, they only agreed to include the crime of aggression in the list of crimes in respect of which the Court shall have jurisdiction.67 They postponed the decision to agree on a definition and on the conditions for the exercise of jurisdiction.68 This decision was made at the Kampala Conference in 2010.69 The exercise of jurisdiction by the International Criminal Court over the crime of aggression, however, was further conditioned upon the “decision to be taken after 1 January 2017”.70 This activation decision, taken at the Assembly of States Parties in New York City in 2017, took effect in 2018.71 The crime of aggression’s absence during the renaissance of international criminal law and its long-lasting fate as a crime “stuck in legal limbo”72 impeded practice and academic discussions. This becomes apparent whenever customary international law plays a role in the domestic implementation of the crime of aggression. The limited practice at the domestic level poses a challenge to assuming a customary obligation to criminalize, a customary right to exercise universal jurisdiction or a customary exception to functional immunities. Instead of merely stating that the existence of these customary obligations, rights or exceptions is controversial, the book openly discusses the possible methodological approaches to ascertaining customary international law and engages in an in-depth analysis of existing instances of State practice.

1.6 Overview of the Chapters To explore the legal aspects of the implementation of the crime of aggression into domestic law, the book is structured as follows: Chapter 2 assesses whether domestic law or international law obliges States to criminalize aggression domestically. The existence of an obligation, however, does not necessarily mean that States engage in implementation. Potential sources of an obligation will be assessed, with a special focus on their level of precision and the possible mechanisms of enforcement in the case of a violation. Both factors are relevant for State compliance with international law according to Guzman.73 The nuanced assessment of Chap. 2 starts with norms stemming from domestic 67

See ICC Statute, Article 5(1). See ICC Statute, former Article 5(2). 69 See Review Conference of the Rome Statute 2010. 70 See ICC Statute, Article 15bis(3) and ter(3). The other condition of Article 15bis(2) and ter(2) of the ICC Statute, the ratification or acceptance of the amendments by 30 States Parties, was met prior to 2017. For the list of ratifications, see https://treaties.un.org/pages. Accessed 15 September 2022. 71 See ICC Assembly of States Parties 2017, operative para 1. 72 Ferencz 2018. 73 Guzman 2002, pp. 1865 et seq. 68

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1 Introduction

constitutional law, namely those with explicit obligations to criminalize, pacifist provisions, as well as fundamental rights. The possible sources of an obligation under international law are international treaty law, such as the ICC Statute and human rights treaties, customary international law and ius cogens. Chapter 3 identifies the core wrong of the crime of aggression as defined under Article 8bis of the ICC Statute. It applies a domestic method for this identification. It first analyzes the “protected legal interests” of the crime of aggression. It then specifies the “type of attack” from which these interests are protected. Central elements of this chapter are the discussion of the traditional conceptualization of the crime of aggression as a crime against State sovereignty and the controversy of whether it also protects individual interests. The latter controversy arose with the “humanization of international law”, which describes the shifted focus of international law from being “State-centered to individual-centered”.74 The domestic method for identifying the core wrong of the crime of aggression under Chap. 3 is chosen to set an appropriate frame of reference for analyzing domestic types of criminal offenses in Chap. 4. Chapter 4 assesses the ability of States to capture the core wrong on the basis of existing domestic law. It does so in light of the identified “protected legal interests” and the “type of attack”. In principle, States are not precluded from such a “minimalist approach” to domestic implementation. This approach is characterized by the simplicity of relying on ordinary criminal offenses in domestic trials, instead of engaging in additional legislative action. Some States have relied on ordinary criminal offenses, such as murder, to prosecute other ICC Statute crimes like genocide.75 It is a common assumption, however, that the crime of aggression cannot be “broken down in a list of possible individual types of conducts”.76 Without implementation, States could be left unable to punish the conduct of aggressors. The chapter tests this general narrative. The envisaged gap analysis is not limited to the substantive criminal law of one particular State. It is conducted based on general types of criminal offenses under domestic law. These are treason, offenses against individual interests, propaganda for war, the crime of aggressive war modelled on the Nuremberg and Tokyo precedents, as well as other implemented “crimes under international law”, such as war crimes and crimes against humanity. Chapter 5 explores the restricted jurisdictional regime of the International Criminal Court regarding the crime of aggression, compared to the regime applicable to other ICC Statute crimes. This topic received special attention for two reasons. First, the analysis of the jurisdictional regime of the International Criminal Court matters to a work dealing with domestic jurisdiction, due to the principle of complementarity. This principle is central for the functioning of the system established by the ICC Statute. Its incentivizing effect on State action in the fight against impunity depends on the reach of the International Criminal Court. If cases are out of reach for this Court, States do not need to enact legislation to avoid future judicial interventions. 74

See Meron 2006, Introduction. For the practice in Germany, see Geneuss 2013, pp. 198 et seq.; Rissing-van Saan 2005, pp. 395 et seq. 76 See for the drafting history of the crime of aggression, Barriga and Kreß 2011, p. 473. 75

1.6 Overview of the Chapters

13

If the restrictions leave the International Criminal Court mostly unable to exercise complementary jurisdiction, States cannot rely on the International Criminal Court. They need to take legislative action to avoid the risk of impunity for the commission of the crime of aggression in their territory and beyond. The recent inability of the International Criminal Court to exercise jurisdiction over the crime of aggression allegedly committed by Russian leaders illustrates why the restricted jurisdiction of this Court is an important argument in favor of domestic implementation. Secondly, the in-depth discussion of the jurisdictional regime of the International Criminal Court is a response to more recent developments. States Parties adopted an ambiguous resolution77 in 2017 which activates the jurisdiction of the International Criminal Court over the crime of aggression. This resolution seems to conflict with their previous resolutions and a fundamental principle of criminal law. To show how the jurisdictional regime is more restricted with respect to the crime of aggression, Chap. 5 adopts a chronological account, starting with the Rome Conference in 1998, before moving to the Kampala Review Conference in 2010 and to the Assembly of States Parties in New York City in 2017. The book continues by exploring the operationalization of the domestic implementation of the crime of aggression. This raises the questions of how to incorporate the definition of the crime into domestic law and how to specify the geographical ambit of domestic criminal jurisdiction. The first question is addressed in Chap. 6, which discusses the three major options for implementing the Kampala Amendments. These options are (1) implementation by copying the definition, (2) implementation by reference to Article 8bis of the ICC Statute (or to other sources of international law), and (3) the modified implementation of the definition. The latter is the most popular option. Understood as a process that integrates the international definition of the crime of aggression into the domestic legal order, implementation may require the third option. It better reflects the legislative preferences, or even legal requirements of that order, such as the domestic principle of legality. As modified implementation comprises a theoretically infinite number of possibilities, the chapter is limited to the discussion of the existing domestic implementations. Chapter 7 addresses the second question relevant to the operationalization of domestic implementation. It assesses how to specify the geographical ambit of domestic criminal jurisdiction. To avoid State responsibility and corrective interpretations by domestic courts, the legislative specification of the geographical ambit of domestic jurisdiction needs to respect international law. It requires a “permissive rule” to rebut the presumed general prohibition under international law on extending jurisdiction to matters with a foreign element. The chapter discusses the “principles of jurisdiction” under international law that may offer the “permissive rule” to exercise prescriptive jurisdiction over the crime of aggression. It emphasizes the most controversial one, the principle of universal jurisdiction. Due to the overall inhibitory context for State practice on aggression, the discussion of a customary

77

See ICC Assembly of States Parties 2017.

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1 Introduction

right to exercise universal jurisdiction is preceded by a detailed account of the applied methodological framework. Chapter 8 discusses the legal challenges raised with respect to the adjudicative jurisdiction of States other than the aggressor State. Even if this book primarily deals with the jurisdiction to prescribe, it would be incomplete without addressing some of the legal challenges which arise when applying these laws. It addresses the possible situation where a State has lawfully exercised prescriptive jurisdiction according to Chap. 7, but its domestic courts are not allowed under international law to exercise adjudicative jurisdiction over a specific person on the basis of the enacted laws. The discussion is limited to the principle of par in parem non habet imperium, immunities and the Monetary Gold doctrine. Due to the leadership clause and the underlying State act of aggression, it is important to discuss the applicability of immunities that are linked to a specific status of the person within the State (personal immunities) and to acts on behalf of the State (functional immunities). This book does not challenge the barring effect of personal immunities of certain State officials while in office. Given that functional immunities would prevent courts from prosecuting State officials, even after they have left office, the analysis of the customary applicability of functional immunity to the crime of aggression receives particular attention. It responds to the controversy that was caused by the more recent work of the International Law Commission on immunities of State officials from foreign criminal jurisdiction.78 It made a distinction between the crime of aggression and other ICC Statute crimes. The last part of this book contains the summary and final conclusions.

References Ambos K (2021) Treatise on International Criminal Law: Foundations and General Part, 2nd edn. Oxford University Press, Oxford, UK Barriga S, Kreß C (eds) (2011) 2005 Discussion Paper 1. In: Barriga S, Kreß C (eds) The Travaux Préparatoires of the Crime of Aggression. Cambridge University Press, Cambridge/New York, pp 471–481 Cassese A, Gaeta P, Baig L, Fan M, Gosnell C, Whiting A (2013) Cassese’s International Criminal Law, 3rd edn. Oxford University Press, Oxford, UK Deutscher Bundestag (2002) Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches [Draft Law of the Federal Government on the Introduction of the Code of Crimes against International Law]. Bundestags-Drucksache 14/8524 Dinstein Y (2018) The Crime of Aggression under Customary International Law. In: Sadat L N (ed) Seeking Accountability for the Unlawful Use of Force. Cambridge University Press, Cambridge, UK/New York, NY, USA, pp 285–302 El Zeidy M M (2017) The Arab World. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, UK, pp 960–992 Ferencz D M (2018) Aggression is no Longer a Crime in Limbo. TOAEP FICHL Policy Brief Series 88 Geneuss J (2013) Völkerrechtsverbrechen und Verfolgungsermessen [Crimes under International Law and Prosecutorial Discretion]. Nomos, Baden-Baden 78

See Draft Article 7(1) in International Law Commission 2017, pp. 176 et seq.

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Green J A, Henderson C, Ruys T (2022) Russia’s Attack on Ukraine and the Jus ad Bellum. Journal on the Use of Force and International Law 9: 4–30 Guzman A T (2002) A Compliance-Based Theory of International Law. California Law Review 90: 1823–1887 Hartig A (2022) Domestic Criminal Courts as Gap-Fillers?: Avoiding Impunity for the Commission of the Crime of Aggression against Ukraine, 12 April 2022: https://voelkerrechtsblog.org/de/dom estic-criminal-courts-as-gap-fillers/. Accessed 15 September 2022 ICC Assembly of States Parties (2017) Resolution, 14 December 2017, ICC-ASP/16/Res.5 International Law Commission (1996) Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries. Yearbook of the International Law Commission Vol. II, Part Two International Law Commission (2017) Report on the Work of its Sixty-Ninth Session, UN Doc. A/72/10 International Military Tribunal (1950) The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany. 22nd August, 1946 to 31st August, 1946, 30th September, 1946 and 1st October, 1946, Part 22. H.M. Stationery Office Jeßberger F (2011) Der transnationale Geltungsbereich des deutschen Strafrechts: Grundlagen und Grenzen der Geltung des deutschen Strafrechts für Taten mit Auslandsberührung [The Transnational Applicability of German Criminal Law]. Mohr Siebeck, Tübingen Kreß C (2000) Vom Nutzen eines deutschen Völkerstrafgesetzbuchs [On the Benefits of Having a German Code of Crimes Against International Law]. Nomos, Baden-Baden Kreß C (2015) Germany and the Crime of Aggression. In: Linton S, Simpson G, Schabas W A (eds) For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark. Brill Nijhoff, Leiden, pp 29–51 Kreß C (2017) The State Conduct Element. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, UK, pp 412–564 Kreß C (2022) The Ukraine War and the Prohibition of the Use of Force in International Law. TOAEP Occasional Paper Series 13: 1–28 Larnaude F, de Lapradelle A G (1919) Examen de la responsabilité pénale de l’Empereur Guillaume II d’ Allemagne. Journal de Droit International 45: 131–170 Members of the International Law Association Committee on the Use of Force (2022) Statement, 4 March 2022: https://www.justsecurity.org/80454/statement-by-members-of-the-internationallaw-association-committee-on-the-use-of-force/. Accessed 15 September 2022 Meron T (2006) Humanization of International Law. Brill Academic Publishers O’Connell M E (2013) The Prohibition of the Use of Force. In: White N D, Henderson C (eds) Research Handbook on International Conflict and Security Law. Edward Elgar Publishing, Cheltenham, pp 89–117 O’Keefe R (2015) International Criminal Law. Oxford University Press, Oxford, UK Open Society Justice Initiative (2022) Model Indictment for the Crime of Aggression Committed against Ukraine. https://www.justiceinitiative.org/publications/model-indictment-for-the-crimeof-aggression-committed-against-ukraine. Accessed 15 September 2022 Pritchard J, Zaide S M (eds) (1981) The Tokyo War Crimes Trial. Garland Publishing, New York Rissing-van Saan R (2005) The German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former Yugoslavia. Journal of International Criminal Justice 3: 381–399 Satzger H (2002) Das neue Völkerstrafgesetzbuch - Eine kritische Würdigung [The New Code of Crimes Against International Law - A Critical Appraisal]. Neue Zeitschrift für Strafrecht 125–132 Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Trahan J (2020) Existing Legal Limits to Security Council Veto Power in the Face of Atrocity. Cambridge University Press, Cambridge, UK/New York, NY, USA van Schaack B (2020) Imagining Justice for Syria. Oxford University Press, New York Wasum-Rainer S (2017) Germany. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, UK

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Werle G (2000) Völkerstrafrecht und geltendes deutsches Strafrecht [International Criminal Law and German Criminal Law]. Juristenzeitung 55: 755–760 Werle G (2001) Konturen eines deutschen Völkerstrafrechts [The Contours of German International Criminal Law]. Juristenzeitung 56: 885–895 Werle G, Jeßberger F (2020) Principles of International Criminal Law, 4th edn. Oxford University Press, Oxford

Other Documents Review Conference of the Rome Statute (2010) Resolution RC/Res.6 of 11 June 2010

Chapter 2

An Obligation to Criminalize Aggression Under Domestic Law?

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Obligation and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 Hardness and Softness of Law: Binding Form, Precision and Enforcement . . . . . 2.1.3 Working Definition of “Aggression” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Domestic Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Hard Legal Obligation Under Constitutional Law to Criminalize Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.2 A Fortiori Obligation from the Constitutional Prohibition of Incitement to War or Propaganda for War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Inference from Other Pacifist Constitutional Provisions . . . . . . . . . . . . . . . . . . . . 2.2.4 Inference from the Duty to Protect Fundamental Rights . . . . . . . . . . . . . . . . . . . . 2.2.5 Conclusion to Domestic Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 No Explicit Legal Obligation to Criminalize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Implied Legal Obligation to Criminalize Due to the Principle of Complementarity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 Coercive Potential of Complementarity Irrespective of an Obligation: The Threat of Judicial Interventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.4 Conclusion to the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 A Fortiori Obligation from the Obligation to Prohibit Propaganda for War Under Article 20(1) of the ICCPR? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 From the Obligation to Ensure Human Rights to the Obligation to Criminalize Serious Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 Human Rights Relevance of the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Territorial Scope of the Obligation to Criminalize Aggression . . . . . . . . . . . . . . . 2.4.5 Conclusion to International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 The Classical Inductive Approach: State Practice and Opinio Iuris . . . . . . . . . . . 2.5.2 The Relationship Between the Obligation to Criminalize, the Obligation to Exercise Jurisdiction and the Obligation to Prosecute (or Extradite) . . . . . . . . 2.5.3 Limited Aggression-Specific State Practice Supported by Opinio Iuris on the Obligation to Criminalize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.4 No General Customary Obligation to Criminalize “Crimes Under International Law” Under Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.5 Conclusion to Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Ius Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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© T.M.C. ASSER PRESS and the author 2023 A. Hartig, Making Aggression a Crime Under Domestic Law, International Criminal Justice Series 32, https://doi.org/10.1007/978-94-6265-591-1_2

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2 An Obligation to Criminalize Aggression Under Domestic Law? 2.6.1 2.6.2

Definition and Characteristics of a Ius Cogens Norm . . . . . . . . . . . . . . . . . . . . . . Methodological Difference of the Ius Cogens Avenue in Comparison to the Customary International Law Avenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.3 Aggression as a Crime Based on a Ius Cogens Norm . . . . . . . . . . . . . . . . . . . . . . 2.6.4 Effects of a Ius Cogens Norm: An Obligation to (Extradite or) Prosecute and an Inherent Obligation to Criminalize? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.5 Conclusion to Ius Cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

77 77 78 82 87 89 90

Abstract The obligation of States to incorporate ICC Statute crimes into domestic law has been central in previous debates on implementation. The existence of an obligation to criminalize, however, does not mean that States engage in implementation. Relevant for State compliance is also the level of precision of the norm and mechanisms of enforcement in case of a violation. This chapter assesses potential sources of an obligation by taking into account factors that influence compliance. It starts with domestic constitutional law and continues with international treaty law, such as the ICC Statute and human rights treaties, customary international law and ius cogens. The chapter shows that the lack of an obligation stemming from the principle of complementarity under the ICC Statute is not compensated by the usually available enforcement mechanisms in case States are legally unable to exercise jurisdiction. The restricted aggression jurisdiction of the International Criminal Court and the few domestic implementations do not push States to proactively criminalize aggression. The chapter argues that it is possible to infer an obligation to criminalize aggression from the constitutional obligation of States to protect fundamental rights. The obligation of States to protect international human rights, the ius cogens nature of the prohibition of aggression or its accepted consequences in the field of State responsibility also support such an inference. However, this requires an extensive interpretative process, which is why the claimed existence of an obligation does not induce compliance. Keywords Obligation · State compliance · Hard law and soft law · Constitutional obligation to protect fundamental rights · ICC Statute · Coercive potential of complementarity · Legislative Pinochet effect · Obligation to criminalize serious human rights violations · Aggression and the human right to life · Human right to peace · Extraterritorial applicability of human rights treaties · Customary obligation · Ius cogens · Duty of the aggressor State to make reparations

2.1 Introduction This chapter aims to assess whether domestic or international law places States under an obligation to criminalize aggression domestically. Under domestic law, it is typically the constitution which may oblige States to enact criminal legislation. Some provisions explicitly spell out an obligation. Others allow an inference of an obligation to criminalize, such as pacifist provisions and

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fundamental rights. The German legislature, for example, referred to a constitutional obligation to explain the criminalization of aggression.1 Under international law, an obligation may stem from international treaty law, customary international law and ius cogens.2 Obligations under customary and international treaty law were given as an explanation by Estonia for the domestic implementation of the crime of aggression.3 As to international treaty law,4 the chapter is limited to the ICC Statute,5 the European Convention on Human Rights (ECHR)6 and the International Covenant on Civil and Political Rights (ICCPR).7 The chapter considers the qualitative differences between the norms that affect compliance (Sect. 2.1.1) and uses the language of “hardness” and “softness” of law to describe the differences in precision and available enforcement mechanisms (Sect. 2.1.2). In this chapter, the term “aggression” is understood more broadly, which ultimately reflects the heterogeneity of sources (Sect. 2.1.3).

1

See Deutscher Bundestag 2016, p. 1. For the sources of international law, see Statute of the International Court of Justice, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (ICJ Statute), Article 38(1). Although this article only provides the sources the International Court of Justice has to apply, is it generally recognized as the “most authoritative and complete statement as to the sources of international law”, see Shaw 2021, p. 58. For the discussion whether ius cogens is an autonomous source of law, see Orakhelashvili 2006, p. 108. 3 Parmas 2017, p. 897. 4 A specific convention on the prevention and punishment of the crime of aggression is lacking. The UN Charter will not be further discussed as it only lays down the crime’s underlying prohibition of the use of force in Article 2(4) without requiring States to suppress violations of this primary norm by means of criminal law. See, in contrast, the conventions with provisions on national suppression that exist specifically for war crimes and genocide: Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (Genocide Convention), Article V; Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (Geneva Convention I), Article 49; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (Geneva Convention II), Article 50; Convention (III) Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Geneva Convention III), Article 129; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV), Article 146. 5 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 6 European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (ECHR). 7 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). 2

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2.1.1 Obligation and Compliance In general terms, an obligation refers to a legal duty to do or not to do something8 and can be contrasted to a right which confers the freedom to do or not to do. Devoting a whole chapter to this topic raises the question of the possible impact of such an obligation. Idealistically, an obligation to criminalize aggression reduces the broad discretion of the legislative branch and leads to legislative action. It may turn the political discourse of the legislative branch into legal discourse which largely disqualifies arguments based solely on political interests.9 Especially regarding the crime of aggression, which is often claimed to be more political,10 there may be political arguments against domestic implementation. However, the idealistic assumption of the impact of an obligation does not seem to be fitting when it comes to international law. The existence of an obligation under international law to criminalize aggression does not necessarily mean that States engage in its implementation. Henkin famously declared that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”.11 However, he did not assert that obligation equals compliance. This may be linked to the fact that international law is generally different from domestic law.12 There is not a comparable centralized enforcement mechanism for a violation of an obligation.13 International law and international adjudication are largely consent-based.14 Further, international law, especially customary international law suffers from a lower level of precision.15 Thus, a one-dimensional assessment of whether there is an obligation to criminalize aggression may not fully capture the context of international law. For the question of State compliance, there seems to be qualitative differences between obligations which will be reflected upon in the more nuanced assessment of this chapter. These differences can be inferred from the theory of compliance developed by Guzman.16 He uses the model of rational self-interested States and argues that 8

For definitions of right and of obligation, see Law and Martin 2009. See Abbott and Snidal 2000, p. 429. For a critical perspective on whether law and politics can be clearly distinguished, see Henkin 1995, p. 4. 10 Due to its inclusion of an act of State and its leadership clause. For a critical discussion, see Reisinger Coracini and Wrange 2017, pp. 331 et seq. 11 See Henkin 1968, p. 42. 12 On the differences, see Jennings and Watts 2008, pp. 8 et seq. On the nature of international law, see also Damrosch and Murphy 2019, Chapter 1; Jovanovic 2019; Vitzthum 2019, paras 45 et seq. 13 See Jennings and Watts 2008, p. 10. The lack of an effective enforcement mechanism led Austin to describe international law “law improperly so called”, see Austin 1832, p. 148. For a rebuttal, see d’Aspremont 2015. See also Damrosch 1998, p. 21; Jovanovic 2019, pp. 182 et seq. 14 On the consensual nature of international law, see Aust 2010, p. 3. For a critical account, see Werner 2016. 15 Sender and Wood 2016, p. 136: “As lex non scripta (unwritten law) that may lack the clarity and certainty of a written instrument….[C]ustomary international law has proven to be ‘an amorphous but formidable jellyfish’.” 16 Guzman 2002. 9

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“compliance occurs due to State concern about both reputational and direct sanctions triggered by violations of the law”.17 The first qualitative difference between obligations is their level of precision.18 Guzman lists the “clarity of the international obligation and its violation” among the factors that influence the reputational impact of a violation.19 He argues that “the reputational consequences are most severe when the obligation is clear and the violation is unambiguous”.20 As the uncertainty of an obligation increases, he continues, the reputational cost from a violation decreases.21 This means that controversies about the existence and content of an obligation to criminalize aggression tend to lower the reputational costs of legislative inaction. If the law is vague, it gives rise to radically different interpretations and makes it easier for States to justify non-compliance22 —or in terms of this chapter—to justify non-criminalization. A second qualitative difference between obligations can be seen in the form of enforcement mechanisms. Apart from reputational sanctions, Guzman considers that concern about “direct sanctions” triggered by violations of the law influences State conduct.23 The most common form of “direct sanctions”24 he refers to are “retaliatory measures taken by one or more States against a violator”.25 He later gives examples of “trade, military, or diplomatic sanctions”.26 This, however, does not mean that softer forms of enforcement are irrelevant for compliance. The interpretation and application of the law by third parties, such as judicial institutions, already increase reputational costs. Allegations by States are tested under accepted standards and procedures27 and obligations become too clear to be violated without losing face.28 Inspired by Guzman’s theory, this chapter assesses whether the respective source of law establishes an obligation by considering the precision of the norm and the 17

Ibid., p. 1827. Synonymous with the clarity or determinacy of an obligation. 19 Guzman 2002, p. 1863. Also Franck considers the clarity or the “determinacy” of the law as one of the factors that influence compliance. Franck 1988, pp. 712 et seq.; Franck 1990, pp. 50 et seq.; Franck 2002, pp. 30 et seq. 20 Guzman 2002, p. 1863. 21 Ibid., p. 1863. 22 See also Franck 2002, p. 31. 23 In detail, see Guzman 2002, pp. 1865 et seq. For a critical perspective on the relevance of sanctions or coercive measures for State compliance in international law, see Chayes and Chayes 1998, p. 25; Franck 1990, p. 3; Henkin 1979, p. 49. For a categorization of enforcement mechanisms in international law, see Hathaway and Shapiro 2011, pp. 302 et seq. 24 For various understandings of sanctions under international law, see Pellet 2013, paras 4 et seq. According to Kelsen, sanctions are the very criterion to distinguish a legal order from a non-legal order, see Kelsen 2000, p. 706. 25 Guzman 2002, p. 1866. See also Guzman 2005, pp. 595 et seq., where he describes direct sanctions as “those imposed by other states against a violating state because it violated the agreement”. 26 Guzman 2002, p. 1846. On diplomatic sanctions, economic sanctions and the limited possibility of military enforcement under international law, see Murphy 2018, pp. 212 et seq. 27 Abbott and Snidal 2000, p. 427. 28 Guzman 2002, p. 1863. 18

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possible mechanisms of enforcement in case of a violation. Both are among (many more) relevant factors for compliance.

2.1.2 Hardness and Softness of Law: Binding Form, Precision and Enforcement To capture the qualitative differences in terms of the precision of the law and of the enforcement mechanisms, this chapter resorts to the vocabulary of “hardness” and “softness” of law. Interestingly, multidimensional approaches to “hard law” and “soft law” also use factors such as precision and enforcement to describe the differences in law.29 Abbott, for example, defines “hard law” as referring to “legally binding obligations30 that are precise31 …and that delegate32 authority for interpreting and implementing the law”.33 “Soft law” is defined as a “residual category”34 whose realm begins “once legal arrangements are weakened along one or more of the dimensions of obligation [in the sense of binding nature], precision, and delegation.”35 Boyle similarly adopts a multidimensional approach to identifying what he calls “soft law”, whereby law can be soft because it is “not binding”, because it is “more open-textured or general in…content and wording”, or because it is “not readily enforceable through binding dispute resolutions”.36

29

For a multidimensional approach to “hard law” and “soft law”, see Abbott and Snidal 2000 (obligation, precision and delegation); Abbott et al. 2000; Alvarez 2020, p. 77 (precision, obligatory authority, and enforcement consequences); Boyle 1999 (form, content and methods of dispute settlement in case of non-performance); Chinkin 2003, p. 30 whereby there are various ways of categorizing international soft law, e.g. because instruments have been “articulated in non-binding form”, because they “contain vague and imprecise terms” or because they rely upon “non-juridical means of enforcement”; Shaffer and Pollack 2013, p. 200. 30 The term “obligation” seems to be misleading as it referred to the binding nature of a norm and not to the question whether the norm stipulates an obligation, a right or a more general principle. See figure 1 in Abbott et al. 2000, p. 404 as well as the definition in Abbott et al. 2000, p. 401 whereby “obligation” means that “states or actors are bound by a rule or commitment”. 31 A precise rule is defined as a rule which “specifies clearly and unambiguously what is expected of a state or other actor (in terms of both the intended objective and the means of achieving it), see Abbott et al. 2000, p. 412. Precision is what Franck calls the “determinacy” of a rule in his seminal work Franck 1990. 32 The third dimension “delegation” means that “third parties have been granted authority to implement, interpret and apply the rules, see Abbott et al. 2000, p. 401. 33 Abbott and Snidal 2000, p. 421. 34 Shaffer and Pollack 2013, p. 200. 35 Abbott and Snidal 2000, p. 422. 36 Boyle 1999, pp. 901 et seq. For similar aspects, see Alvarez 2020, p. 77.

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These multidimensional approaches to “hard law” and “soft law”, which include the binding force, level of precision and enforcement measures, differ from the traditionally binary approach37 of positivist legal scholars. They perceive everything which does not stem from the sources of international law enumerated in Article 38(1) of the ICJ Statute as soft law.38 This binary approach is criticized for being “excessively simplistic” as it divides written norms into those that are binding and those that are not.39 Even written treaty provisions “may create little or no obligation, although inserted in a form of instrument which presumptively creates rights and duties”.40 To recall, the present chapter is limited to the generally recognized sources of national and international law which are all undisputedly of “binding force”. At most, this chapter deals with “legal soft law”.41 The attributes of “softness” will not question the legally binding nature of the law but refer to its level of precision and the availability of an enforcement mechanism. It is possible, for example, that an obligation is not spelt out explicitly but is the outcome of a lengthy interpretative process. In this case, the existence and content of the obligation are debatable. The law would be considered as “soft” in terms of “precision”. At the same time, the law under scrutiny may provide for a mechanism if a State does not criminalize aggression, irrespective of whether it clearly establishes an obligation or only a softer commitment. There, the law in question would be labelled as soft in terms of “precision” but harder in terms of “enforcement”. This more nuanced assessment does not put into question that obligations matter most from the internal perspective of legal actors, such as judges, who must make and weigh arguments at court.42 In other, more dramatic, words: “Half rights and obligations…are, when it comes to applying the law, nothing else but ‘perfect absurdities’”.43 Only the breach of legal obligations can give rise to legal responsibility 37

See also Guzman and Meyer 2010, p. 174, who describe Abbott’s and Snidal’s approach as the “minority view” and opt for the “more common definition, focusing on differences in legality rather than design features that affect compliance”. 38 Thürer 2009, para 5; Guzman and Meyer 2010, who prefer the distinction between binding and non-binding norms; Klabbers 1998, p. 387 (“the simplicity of the law, knowing only categories of legal or illegal, in force or not in force, binding or not binding, makes it possible to survive in this complex world”); Skjærseth 2010, p. 3. 39 Baxter 1980, p. 564. Similarly, d’Aspremont 2008, p. 1075. 40 Baxter 1980, pp. 364 et seq. In the same vein, d’Aspremont 2008, pp. 1084 et seq.; Handl et al. 1988, p. 378; Weil 1983, p. 414. 41 Chinkin 2003, p. 26 whereby “legal soft law” fuses legal form with soft obligations. See also Olsson 2013, p. 180 who uses the term “treaty soft law” to describe “treaties and treaty provisions that do not intend to create firm obligations despite their legally binding form and that are imprecise (in language) or flexible (in context)”. For a critique of these terms, see Ingelse 1993, p. 81. 42 Shaffer and Pollack 2013, p. 200. 43 See the British philosopher David Hume. Cited by Klabbers 1996, p. 167. This is why Klabbers assumes that the “beauty of law is, that it…can translate all the various political or moral subtleties and nuances in simple dichotomies such as binding/non-binding, legal/illegal, and do justice to those subtleties and nuances by determining exactly what it is that is binding, or legal.” See Klabbers 1996, p. 182.

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and opens the door for available remedies and procedures.44 On the other hand, if States are not legally held responsible for legislative inaction, considering the level of “hardness” of the obligation in terms of precision and the availability of enforcement mechanisms enhances the relevance of the assessment. It can explain why the existence of an obligation to criminalize aggression does not necessarily lead to domestic implementation.

2.1.3 Working Definition of “Aggression” Since the chapter analyzes sources that predate the Kampala Conference, “aggression” cannot be understood as referring to the definition of Article 8bis of the ICC Statute. In this chapter, “aggression” is limited to its uncontroversial main elements. It is understood in a rather untechnical sense as the act of triggering the use of armed force by one State against another State, which manifestly violates the ius ad bellum45 and can only be committed by a person coming from the leadership circle of a State.

2.2 Domestic Constitutional Law Depending on the specific domestic legal order, constitutional law can be the source of an obligation to criminalize aggression. The following examples serve only as an illustration and do not claim to be representative. Provisions from domestic constitutions are commonly hard in terms of being binding.46 Depending on the possibilities of judicial review by the constitutional court, they are also hard in terms of enforcement. The “hardness” in terms of precision, in contrast, may vary from an explicit obligation to criminalize aggression to an implied and less certain obligation deriving from fundamental rights.

2.2.1 Hard Legal Obligation Under Constitutional Law to Criminalize Aggression Article 26(1) of the German Constitution [Grundgesetz] offers the rare example of a hard legal obligation to criminalize aggression. It leaves no doubt as to the existence of an obligation and to the required use of criminal law by stipulating: “Acts tending 44

Abbott et al. 2000, p. 409. On the other hand, it is a difficult to see who has directly suffered as a result of a merely legislative inaction. 45 The law that regulates the resort to the use of force. 46 Constitutional law is normally perceived to be superior to domestic statutory law and in some countries almost immutable due to difficult amendment procedures.

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to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be criminalised.”47 A systematic comparison to other provisions of the German Constitution and to foreign constitutions reveals the exceptional nature of this explicit obligation. A constitutional obligation to criminalize is normally difficult to construe. A general duty to protect may be deduced from fundamental rights, as we will later see.48 Such a duty to protect, however, still leaves room for the choice of protective measures and does not oblige the legislature to resort to the powerful tool of criminal law.49 Hence, the prescribed resort to criminal law in Article 26 of the German Constitution contrasts with the common legislative discretion in the choice of means.50 A comparison to foreign constitutions confirms the particular nature of an explicit constitutional obligation to criminalize aggression. The constitutions of several States51 contain pacifist provisions, such as the commitment to international peace,52 to the prohibition of the use of force,53 or to international law in general,54 but they lack an explicit constitutional obligation to criminalize aggression. The German approach is not surprising considering its history. Article 26 and the overall pacifist approach which shines through many provisions of the German Constitution,55 are a reaction to the Nazi campaign of aggressive wars.56 The addition of a harder, in the sense of explicit, obligation to criminalize aggression in the main part of the German Constitution of 1949 could have been an attempt to build a more robust bulwark against aggression. It also learns from the softer preambular

47

German Constitution, Article 26(1). Manssen 2020, § 3, para 58. For a contribution in English, see Bumke and Voßkuhle 2019, paras 188 et seq. 49 See also Bumke and Voßkuhle 2019, para 191: “Because the protected objects of fundamental rights can be prosecuted in many different ways, it can be difficult to determine the precise content of the duty to protect.”. 50 See one of the rare examples where the German Federal Constitutional Court [Bundesverfassungsgericht] inferred a duty to criminalize from the duty to protect fundamental rights in the judgments on abortions, see German Federal Constitutional Court, Judgment, 25 February 1975, BVerfGE 39, 1; German Federal Constitutional Court, Judgment, 28 March 1993, BVerfGE 88, 203, at paras 257 et seq. On the two judgments, see also Tomuschat 2014, p. 369. 51 For examples from various foreign constitutions, see Stratmann 1971, pp. 27 et seq.; Hobe 2009, paras 20 et seq. 52 See, e.g., Preamble of the Ecuadorian Constitution; Preamble of the Macedonian Constitution. 53 See, e.g., Article 11 Italian Constitution; Article 7 Afghan Constitution; Article 416(2) Ecuadorian Constitution. 54 See, e.g., Article 9 Austrian Constitution; Article 1(2) Czech Constitution; Article 416(9) Ecuadorian Constitution; Section 3 Estonian Constitution; Article 98(2) Japanese Constitution. 55 See, inter alia, German Constitution, Preamble, Article 24(2), Article 25. On the pacifist approach of the German Constitution, see Stratmann 1971, pp. 4 et seq. 56 Clemens 2005, p. 137; von Mangoldt et al. 2018, para 1; Stratmann 1971, pp. 13 et seq. 48

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commitment to peace of the German Constitution of 1919 which did not prevent World War II.57 In 1968, the explicit constitutional obligation led to the creation of a provision criminalizing “preparation of a war of aggression”.58 The lower level of precision of Article 26 of the German Constitution as to what specific conduct must be criminalized may explain why the German legislature viewed criminalizing only the preparation as sufficient to comply with the constitutional obligation.59 The omission of the execution phase was criticized for being an incomplete implementation of the constitutional mandate.60 This controversy caused by the lower degree of precision in terms of the expected offense definition also fits with Franck’s emphasis of the importance of textual determinacy for full compliance.61 In 2017, the German legislature implemented a post-Kampala version of the crime of aggression into the German Code of Crimes Against International Law. It remedied the previous lack of criminalizing the execution phase and deleted the former provision on the preparation of a war of aggression.62 The creation of the new criminal provision was still explained, inter alia, in reference to the constitutional mandate.63 To conclude, the German Constitution offers the rare example of an explicit obligation, which led, albeit with delay, to compliance. The indeterminacy of the content of the obligation may explain why an incomplete implementation was possible despite the obligation’s clear existence.

2.2.2 A Fortiori Obligation from the Constitutional Prohibition of Incitement to War or Propaganda for War Another potential source of an obligation to criminalize aggression are constitutional provisions that prohibit or declare as punishable the incitement to war or propaganda for war. For example, Article 39 of the Croatian Constitution states: “Prohibited

57

Despite being “inspired by the determination…to serve peace at home and peace abroad”, as the Preamble of the Constitution of 1919 proclaims in aspirational terms, the German people has given itself a constitution in 1919 which did not prevent World War II. 58 Laufhütte and Kuschel 2007, Entstehungsgeschichte. See former Section 80 of the German Criminal Code. 59 See Deutscher Bundestag 1968, p. 2. 60 The constitutional mandate in Article 26 of the German Constitution mentions the preparation as an example but requires the criminalization of “acts tending to and undertaken with intent to disturb the peaceful relations between nations” in general. See Steinsiek 2020, Entstehungsgeschichte. 61 Franck 2002, pp. 30 et seq. 62 See Gesetz zur Änderung des Völkerstrafgesetzbuches [Law to Amend the German Code of Crimes Against International Law], I 2016 65, 22 December 2016, Bundesgesetzblatt (2016). 63 See Deutscher Bundestag 2016, p. 1.

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and punishable is any call for or incitement to war….”64 Similar provisions can be found in the constitutions of Armenia,65 Azerbaijan,66 Kazakhstan,67 Lithuania,68 Moldova69 and Tajikistan.70 If these provisions are understood as an obligation to criminalize the incitement to war or propaganda for war, which have a certain overlap with the commission of the crime of aggression in the variation of “planning” or “preparation”,71 one might be tempted to engage in a reasoning a fortiori to construe an obligation to criminalize all forms of committing aggression, including the “initiation” and “execution” of an act of aggression.72 On the other hand, incitement to war and propaganda for war are still different from the crime of aggression.73 Propaganda for war, as well as incitement to war, can be considered as “psychological planning and preparation for wars of aggression”,74 and thus leave gaps for non-communicative forms of planning and preparation. Moreover, they do not capture the conduct of executing an act of aggression as preliminary crimes.75 The lack of a leadership clause broadens their personal scope of application. Thus, despite their common aim to prevent war, they are both narrower and broader than the crime of aggression. Keeping in mind that an obligation is the exception to the otherwise broad legislative freedom, there are better reasons to abstain from inferring an obligation to criminalize aggression from the obligation to prohibit incitement to war or propaganda

64

This can either be interpreted as if the incitement to war is declared directly punishable by the constitutional legislature, or, alternatively, it requires the “ordinary legislature” to criminalize the same conduct under ordinary domestic criminal law. 65 Article 47 of the Armenian Constitution: “The exercise of the rights and freedoms with the purpose of the overthrow of the constitutional order, incitement to national, racial and religious hatred, propaganda of violence or warfare shall be prohibited.” 66 See Article 47(3) of the Azerbaijan Constitution: “Propaganda inciting racial, ethnic or religious animosity or hostility is inadmissible.” 67 Article 20(3) of the Kazakhstan Constitution: “Propaganda of or agitation for the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war…shall not be allowed.” 68 See Article 135(2) of the Lithuanian Constitution: “In the Republic of Lithuania, war propaganda shall be prohibited.” 69 See Article 32(3) of the Moldovan Constitution, whereby “[i]t is prohibited and punished by the law…to encourage war of aggression…” 70 Article 11(2) of the Tajikistan Constitution whereby “[w]ar propaganda is prohibited.” 71 See Chap. 4, Sect. 4.4. 72 Incitement and instigation are often (unfortunately) conflated and pursue a similar aim, namely sanctioning the behavior of individuals who provoke or encourage others to commit a crime. On the differences between the form of participation of “instigation” and the inchoate crime of “incitement”, see de Hemptinne 2019, pp. 392 et seq. 73 See Chap. 4, Sect. 4.4. 74 See the indictment in the Ministries case, US Military Tribunal Nuremberg, The United States of America vs. Ernst von Weizäcker et al., in Allied Control Council No. 10 1949a, p. 26. 75 See Chap. 4, Sect. 4.4.3.

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for war. Nonetheless, such constitutional provisions can still work as an incentive to criminalize aggression, as it has been the case in Tajikistan.76

2.2.3 Inference from Other Pacifist Constitutional Provisions An obligation to criminalize aggression could theoretically flow from the overall pacifist approach of domestic constitutions. A pacifist approach is manifested, for example, by preambular commitments to peace,77 or the renunciation of war, or the affirmation of the prohibition of the use of force.78 The former can be perceived as a constitutional anchorage of the protected legal interests of the crime of aggression, the latter as the constitutional affirmations of the crime’s underlying prohibition of the use of force. However, preambular commitments to peace are soft in terms of substantive precision. Articulating a State’s commitment to peace does not specify a particular legislative action. Moreover, preambles may simply outline a society’s fundamental goals in a ceremonial or symbolic way without necessarily being legally binding.79 Accordingly, preambular commitments to peace do not allow the inference of an obligation to criminalize aggression as they are soft in terms of precision and often are not binding. Constitutional renunciations of war or affirmations of the prohibition of the use of force are also unable to generate an obligation to criminalize aggression. They broadly mirror Article 2(4) of the UN Charter80 which enshrines the prohibition of 76

Reisinger Coracini 2017, p. 1057. See Preamble, Japanese Constitution: “…we shall secure for ourselves and our descendants the fruits of peaceful cooperation with all nations resolved that never again shall we be visited with the horrors of war through the action of government…”; Preamble of the Ecuadorian Constitution: “Decided to build:[…] A democratic country, committed to Latin American integration—the dream of Bolívar and Alfaro—peace and solidarity with all peoples of the Earth”; Preamble of the Estonian Constitution: “will develop a State[…] which shall protect internal and external peace”; Preamble of the Macedonian Constitution: “decided to establish the Republic of Macedonia as an independent, sovereign State, with the intention of [….]providing peace and coexistence”. 78 See, e.g., Article 11 of the Italian Constitution: “Italy rejects war as an instrument of aggression against the freedoms of other peoples and as a means for the settlement of international disputes; it agrees on conditions of parity with other States, to the limitations of sovereignty necessary for an order that ensures peace and justice among Nations...”; Preambular para 14 of the French Constitution: “The French Republic, faithful to its traditions, shall respect the rules of public international law. It shall undertake no war aimed at conquest, nor shall it ever employ force against the freedom of any people.”; Article 7 of the Afghan Constitution: “The State shall observe the United Nations Charter.”; Article 416(2) of the Ecuadorian Constitution: “It advocates the peaceful settlement of disputes and international conflicts and rejects the use of threats and force to settle the above.”; Article 144 of the Paraguayan Constitution: “The Republic of Paraguay renounces to war but upholds the principle of self-defense.” 79 In detail, see Orgad 2010, pp. 717, 722 et seq. 80 Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter). 77

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the use of force under international law. As the primary norm, Article 2(4) of the UN Charter obliges States to refrain from a certain conduct. It is silent on the secondary norms of State responsibility or individual criminal responsibility that apply once the primary norm is violated.81 Like Article 2(4) of the UN Charter, the corresponding constitutional provisions are not read as obliging States to criminalize aggression. While constitutional affirmations do not contain an obligation to criminalize, they equally do not impede criminalization. However, in Japan, the constitutional renunciation of war82 had the reversed effect. It was used as an argument against enacting legislation that related in any way to war and international crimes.83 The concern was that a provision which criminalizes war presupposes a violation of the constitutional renunciation of war and questions the culture of Japanese antimilitarism.84 While secondary norms logically presuppose the violation of primary norms, such as those under international humanitarian law, human rights law and the ius ad bellum, this does not render secondary norms unlawful or obsolete. It rather serves to strengthen the compliance with primary norms. A systematic comparison of other States also shows that constitutional affirmations of the prohibition of the use of force are not perceived as an impediment to the creation of a respective criminal norm. The Afghan reference to the UN Charter,85 for example, did not prevent Afghanistan from criminalizing aggression. Nonetheless, neither the constitutional commitment to peace nor the constitutional affirmation of the prohibition of the use of force generate an obligation to criminalize aggression. As constitutional articulations they can still have some significance as a legal consideration in the legislative decision-making process.

2.2.4 Inference from the Duty to Protect Fundamental Rights Fundamental rights enshrined under domestic constitutions are another potential source of an obligation to criminalize aggression. It is beyond the scope of this chapter to discuss a representative number of constitutions. This is why it is limited to the considerations relevant for the potential of fundamental rights to spell out an obligation to criminalize aggression. Examples from specific States are for illustrative purposes only. 81

On the notion of primary and secondary rules, see Cassese 2005, p. 244. For the link between the crime of aggression and the primary rule, see also Werle 2010, pp. 1222 et seq. 82 See Article 9 of the Japanese Constitution: “In sincere pursuit of an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, are not maintained. The right of belligerency of the state will not be recognized.” On the genesis of Article 9 of the Japanese Constitution, see Stratmann 1971, pp. 34 et seq. 83 Jørgensen 2017, p. 994; Meierhenrich and Ko 2009, p. 239. 84 See Meierhenrich and Ko 2009, p. 239. 85 See Article 7 of the Afghan Constitution: “The State shall observe the United Nations Charter”.

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First, it is necessary that domestic constitutional law conceptualizes fundamental rights as also containing a positive duty to protect.86 This obliges the State to become active.87 Traditionally, fundamental rights were perceived as only having a negative duty to refrain.88 The positive or “affirmative” duty for the State to protect is a relatively “new dogmatic construct”,89 considerably influenced by human rights bodies.90 It is even rejected in States, like the United States, with a libertarian leaning.91 By contrast, it has a long tradition under German constitutional law.92 Secondly, the recognition of a positive obligation to protect fundamental rights under constitutional law does not automatically lead to an obligation to criminalize. There is still room for the choice of protective measures.93 Under German constitutional law, this is described by the Untermaßverbot which only bans manifestly inadequate protective measures.94 Due to this considerable margin of discretion, the German Constitutional Court has rarely inferred an obligation to criminalize from the obligation to protect.95 Thirdly, States may not acknowledge the link between fundamental rights and a crime that is traditionally perceived as violating international peace and State sovereignty. If it is accepted in accordance with Chap. 3 that the crime of aggression puts individual rights at an abstract risk or implicitly requires, due to the “manifest” threshold, a concrete risk or violation of individual rights,96 there is room for a positive obligation to criminalize aggression from a fundamental rights perspective. Fourthly, the transboundary nature of the crime of aggression raises the question of the territorial applicability of fundamental rights. If a State creates a criminal provision that covers situations in which it is aggressed by a foreign act of aggression, it depends on whether the positive obligation to protect fundamental rights extends to interferences stemming from persons acting from abroad on behalf of another 86

For an overview, see, e.g., Besson 2003. One could also perceive the obligation to criminalize aggression committed by own State officials (not foreign State officials) as being linked to the obligation to refrain from human rights violation given that a criminal offense can deter officials from violating human rights. 88 Besson 2003, p. 50; Lavrysen 2014, p. 71. 89 Besson 2003, p. 51 (“nouvelle construction dogmatique”). 90 See on the positive obligation in universal and regional human rights systems, Shelton and Gould 2013. 91 See Lavrysen 2014, pp. 76 et seq.; Besson 2003, p. 57. For a comparison between the US and Europe, see Michelman 2005. 92 Krieger 2013a, paras 21 et seq.; Manssen 2020, § 3, para 58. For a contribution in English, see Bumke and Voßkuhle 2019, paras 188 et seq. 93 See also Bumke and Voßkuhle 2019, para 191. See in detail Lagodny 1996, pp. 254 et seq. On the means-selecting discretion, see Alexy 2010, p. 396. For a comparative law perspective, see Besson 2003, pp. 95 et seq. 94 Bumke and Voßkuhle 2019, para 188. 95 See German Federal Constitutional Court, Judgment, 25 February 1975, BVerfGE 39, 1. See also German Federal Constitutional Court, Judgment, 28 March 1993, BVerfGE 88, 203, at paras 257 et seq. 96 See Chap. 3, Sect. 3.5.6. 87

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State. While the duty to protect is mainly discussed under German law with regard to interferences stemming from private actors,97 the German Constitutional Court has extended the duty to protect to interferences emanating from other States.98 This seems to be plausible given that both private actors and foreign States are generally not bound by the fundamental rights enshrined in the German constitution.99 In the reversed situation, where a State creates a criminal provision that covers situations where it aggresses a foreign State, it depends on whether a constitutional obligation to protect extends to foreigners abroad.100 This interpretation reveals the theoretical possibility of inferring an obligation to criminalize aggression from fundamental rights and the existent gateways to reject it. This is why such a claimed obligation under fundamental rights can be perceived as soft in terms of precision. However, it can become “harder” if the outlined steps are confirmed by authoritative interpretation.101 At least in Germany, the Constitutional Court has not yet embraced such an interpretation.102 Considering that Article 26 of the German Constitution contains an explicit obligation to criminalize aggression, the potential of fundamental rights to generate an obligation to criminalize is less relevant under German law. Whether fundamental rights are elsewhere interpreted as generating an obligation to criminalize aggression remains to be seen.

2.2.5 Conclusion to Domestic Constitutional Law To conclude, domestic constitutions tend to use vague language and rarely spell out an explicit obligation to criminalize aggression. World War II and other armed conflicts have left pacifist traces in the constitutions of States involved. After initiating two world wars, Germany offers the rare example of an explicit constitutional obligation to criminalize aggression. Deducing an obligation to criminalize aggression from constitutional provisions with the different subject matter of propaganda for war or 97

Krieger 2013a, paras 50 et seq. See German Federal Constitutional Court, Judgment, 4 September 2008, 2 BvR 1720/03, para 36; German Federal Constitutional Court, Judgment, 16 December 1980, BVerfGE 55, 349, 364 et seq. See also Higher Administrative Court Nordrhein-Westfalen, Judgment, 19 March 2019, 4A 1361/15, para 107. 99 See German Federal Constitutional Court, Judgment, 4 September 2008, 2 BvR 1720/03, para 36. 100 Under German constitutional law, it seems that constitutional rights of foreigners abroad are protected from interferences by German State officials irrespective of whether they are acting from within Germany or from abroad, see German Federal Constitutional Court, Judgment, 19 May 2020, 1 BvR 2935/17. See also Hofmann 1994, pp. 345 et seq. For the situation under US constitutional law, see Hunter 1986. 101 It may also become harder in case there is an obligation to criminalize aggression under international law in light of which domestic fundamental rights are interpreted. 102 It has not even pronounced itself on the relationship of fundamental rights and the incorporation of crimes under international law in general. On the inference of an obligation to criminalize crimes under international law from fundamental rights, see Darge 2010, pp. 244 et seq. 98

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incitement to war103 requires a legal stretch. It also conflicts with the wide margin of discretion of the legislative branch. Preambular commitments to peace or the constitutional affirmation of the prohibition of the use of force can provide argumentative support for criminalizing aggression. They logically support the creation of a criminal provision that aims to protect peace and seeks to enforce the primary prohibition of the use of force. However, these provisions generate neither an obligation nor an impediment to the creation of criminal norms. It is theoretically possible to infer an obligation to criminalize aggression from the duty to protect fundamental rights. However, such a claim depends on the understanding of aggression, the conceptualization of fundamental rights and their territorial scope under domestic constitutional law. Overall, constitutional obligations differ regarding precision. This ranges from the German explicit obligation to criminalize aggression to the more burdensome (but not yet officially affirmed) inference from fundamental rights. Being part of domestic constitutional law, these provisions can rely on the existing possibilities of judicial review and thereby seem to provide for a “harder” enforcement mechanism.

2.3 ICC Statute Under international law, the ICC Statute is the first source to be assessed on its potential to generate an obligation to criminalize aggression. Although the Statute of the International Criminal Court is by its very name and content a document that establishes an international court for the suppression of crimes, it contains several provisions that touch upon the national suppression of crimes.104 This is why there have been (aggressionunspecific) discussions about the Statute’s potential to create an obligation to implement. Most scholars deny the existence of an obligation and describe the ICC Statute as a “catalyst” or “incentive” for national implementation.105 States do not provide unequivocal practice on whether the principle of complementarity can be interpreted as creating an obligation to implement.106 When they refer to the principle 103

See, e.g., Article 39 of the Croatian Constitution. See ICC Statute, preambular paras 4 and 6; Articles 1 and 17. 105 Ambos 2018a, §6 mn. 36 et seq.; Bekou 2011, pp. 838 et seq.; Cryer et al. 2019, pp. 80 et seq.; Nouwen 2013, Chapter 2; Robinson 2002, p. 1860; Stahn 2019, p. 225; Werle and Jeßberger 2020, para 465. In favor of an obligation: Donat Cattin 2012, pp. 11 et seq.; Kleffner 2003; Philips 1999, p. 64. 106 See, e.g., for South Africa, Article 5(3) of the Implementation of the Rome Statute of the International Criminal Court Act (2002): “The National Director must, when reaching a decision on whether to institute a prosecution contemplated in this section, give recognition to the obligation that the Republic, in the first instance and in line with the principle of complementarity as contemplated in Article 1 of the Statute, has jurisdiction and the responsibility to prosecute persons accused of having committed a crime.”; Dugard 2018, pp. 284 et seq. For Estonia, see Parmas 2017, p. 897: “international obligations stemming from both customary international law and international treaties binding on Estonia.” 104

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in their legislative acts, this does not necessarily imply that they perceive complementarity as requiring implementation.107 It may only have rendered implementation more attractive. These general pre-Kampala discussions may need some nuancing to reflect the particularities of the crime of aggression. These are the late inclusion of its definition in the ICC Statute,108 the restricted jurisdictional regime of the International Criminal Court,109 as well as an ambiguous interpretative understanding to the Kampala Amendments.110 The latter potentially expresses a subtle preference against the domestic prosecution of the crime of aggression.111 The envisaged assessment is thus aggression-specific and structured as follows: It will first explore whether the ICC Statute contains an explicit obligation (Sect. 2.3.1) or at least an implied obligation to criminalize aggression due to the principle of complementarity (Sect. 2.3.2). As an implied, but controversial, obligation is of little worth from a compliance perspective, the assessment then turns to the question of whether the ICC Statute provides for a coercive enforcement mechanism which helps to achieve the same desired result, namely domestic criminalization, irrespective of an obligation (Sect. 2.3.3). It eventually concludes that the potential of the principle of complementarity with respect to the domestic criminalization of aggression is rather of non-coercive nature (Sect. 2.3.4).

2.3.1 No Explicit Legal Obligation to Criminalize Neither the operative part nor the Preamble of the ICC Statute explicitly create an obligation to criminalize.

2.3.1.1

Operative Part of the ICC Statute

A quick scan of the ICC Statute reveals that its operative part, where substantive obligations are usually found, lacks an explicit obligation to implement the crimes listed in Article 5 of the ICC Statute. Only Article 70(4)(a) and Article 88 of the ICC Statute

107

For various examples of implementing legislation that refers to the principle of complementarity, see Kleffner 2009b, p. 334. See, e.g., the explanation given in Deutscher Bundestag 2016, p. 1: ‘With this bill, the Federal Republic of Germany is committed to put into practice the principle of complementarity.’ 108 See Review Conference of the Rome Statute 2010, Annex I; ICC Statute, Article 8bis. 109 See ICC Statute, Article 15bis and Article 15ter. 110 See Review Conference of the Rome Statute 2010, Annex III, Understanding 5: “It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.” 111 Van Schaack 2012; Veroff 2016, p. 751.

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expressly oblige States to take legislative action.112 However, these obligations are not concerned with the implementation of the core crimes, but with the criminalization of offenses against the administration of justice113 or with cooperation issues.114 Compared to the language of the express obligations in Articles 70(4)(a) and 88 of the ICC Statute, the provisions on the principle of complementarity115 cannot be perceived as a source of an explicit obligation to criminalize ICC Statute crimes. They rather depict the principle of complementarity as a rule on concurrent jurisdiction116 and as a “legal admissibility device”.117 They only postulate that the International Criminal Court “is complementary to national criminal jurisdiction” in Article 1 of the ICC Statute. They use the language of a “State which has jurisdiction” in the rules on the functioning of complementarity, such as Article 17(1)(a) and (b) of the ICC Statute. At most, and as we will explore later, the principle of complementarity may generate an implied obligation to criminalize aggression.

2.3.1.2

Preamble of the ICC Statute

While not being part of the operative part of the Statute, paragraphs 4 and 6 of the Preamble of the ICC Statute are written in a more forceful and concrete language by affirming that the effective prosecution of the most serious crimes “must be ensured by taking measures at the national level” and by recalling that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. As we will see, the potential of these paragraphs to generate obligations is not precluded due to their position in the Preamble or their adoption prior to the inclusion of the definition of the crime of aggression, but it is still questionable due to their language.

112

Duffy and Huston 2000, p. 34; Kleffner 2003, p. 91 fn. 20; Rastan 2010, p. 93 fn. 34.; Werle and Jeßberger 2002, p. fn. 15. 113 See ICC Statute, Article 70(4)(a): “Each State Party shall extend its criminal laws penalizing offences against the administration of justice referred to in this article, committed on its territory or by one of its nationals”. 114 See ICC Statute, Article 88: “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this part”. It obliges States to review their national laws and to introduce, if necessary, legislation to fulfill their obligation to cooperate with the International Criminal Court. See Kreß and Prost 2021, para 4. 115 See ICC Statute, Articles 1, 17, 18, 19 and 20(3). Preambular paragraph 10 postulates the principle of complementarity but does not belong to the operative part of the Statute. 116 In the sense of having an international court with complementary jurisdiction instead of having primacy or exclusive jurisdiction vis-à-vis domestic courts. 117 See Stahn 2019, p. 223. For a similar label, see Nouwen 2013, p. 11: “technical admissibility rule”.

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Preambles of an international treaty are often considered as an introductory general statement only118 and attributed a less obligatory nature.119 However, it would be “overly technical and conservative”120 if preambular paragraphs were unable to impose obligations due to their position only.121 The preamble is not an external but an “integral part”122 of the treaty and nothing in the law of treaties explicitly indicates an inferior legal force.123 This is why it ultimately depends on the language, whether preambular paragraphs are specific enough to impose obligations.124 The preambular paragraphs discussed in the following are applicable to the crime of aggression although the definition was missing when the Preamble and the ICC Statute were adopted at the Rome Conference in 1998. The crime of aggression, albeit undefined, was listed in Article 5 of the ICC Statute since Rome. States did not identify any of the preambular paragraphs when they examined the ICC Statute for potentially conflicting provisions prior to the Review Conference.125 There is therefore a strong presumption that the Preamble is applicable to the crime of aggression. This brings us to the close analysis of the language of the preambular paragraphs and the question of whether they oblige States to criminalize ICC Statute crimes. Preambular paragraph 4 reads as follows: “Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. On the one hand, it uses the strong language of “must be ensured”. On the other hand, it fails to specify the “measures at the national level” and where the “effective prosecution” shall take place.126 This is why paragraph 4 leaves the impression of a merely solemn statement on the importance of the fight against impunity and the required support of States.127 Moreover, the introductory verb of “affirming” does not suggest that the ICC Statute creates a new obligation but it only affirms an existing one outside the Statute. Preambular paragraph 6 states: “Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. Preambular paragraph 6 appears to be hard enough in terms of precision. It uses the mandatory language of “duty” and deals with the right subject matter, the exercise of 118

Klabbers 2018, pp. 184 et seq.; Villiger 2009, Preamble, para 1. For the same discussion, see Klabbers 2018, pp. 182 et seq.; Kleffner 2009b, pp. 237 et seq. For the tendency of State delegates to push controversial articles to the preamble, see Trahan 2018, p. 217. See also Triffterer et al. 2021, para 4; UN General Assembly 1995, paras 35 et seq. 120 Schabas 2016, p. 32 et seq. See also You 1941, p. 67: “un excès de formalisme”. 121 In detail, see Kleffner 2009b, pp. 237 et seq. In the same vein, Pinto Soares 2015, pp. 244 et seq. For a contrary view, see Barrett and Beckman 2020, pp. 166 et seq.; Fitzmaurice 1957, p. 227; Klabbers 2018, p. 182; Villiger 2009, Preamble, para 1. 122 Donat Cattin 2012, p. 369; Fitzmaurice 1957, p. 229; Kleffner 2009b, p. 237. 123 Schabas 2016, p. 32; Kleffner 2009a, p. 45. 124 You 1941, p. 67. Similarly, Kleffner 2009b, p. 240. 125 Barriga 2012, p. 19. 126 Robinson 2010, p. 96 who reads the Preamble as requiring responses to crimes at any level. 127 For the same conclusion, see Kleffner 2009b, p. 241. 119

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jurisdiction, which includes the jurisdiction to prescribe.128 The overall language of preambular paragraph 6, however, militates against an interpretation that it as a source of an explicit obligation to implement ICC Statute crimes. First, when “recalling” the duty of every State, preambular paragraph 6 underlines that it does not intend to formulate a new duty, but is purely indicative of pre-existing ones, such as those under customary international law.129 The chosen wording “every State” instead of “every State Party” also implies that paragraph 6 does not deal with statutory duties, but those that address every State.130 Similarly, using the term “international crimes” instead of “the most serious crimes of concern to the international community as a whole” decouples the duty from the language of Article 5 of the ICC Statute and from the Statute as such.131 Hence, neither the operative part, in particular the provisions on complementarity, nor the Preamble contain an explicit obligation to implement the crimes enshrined in the ICC Statute into domestic law. The overall framing of preambular paragraphs 4 and 6 reveals that they refer to obligations outside the Statute. This may still be relevant when collecting evidence for a customary international law obligation.

2.3.2 Implied Legal Obligation to Criminalize Due to the Principle of Complementarity? Nonetheless, the principle of complementarity could implicitly require States to enact implementing legislation.

2.3.2.1

Understanding of the Principle of Complementarity

The principle of complementarity describes the jurisdiction of International Criminal Court as complementary to domestic criminal jurisdictions.132 This implies that States are primarily responsible for prosecuting crimes under international law.133 The International Criminal Court only steps in if States are “unable” or “unwilling” to prosecute.134 The principle of complementarity is one of basically four variations on

128

See also Chap. 7, Sect. 7.1.1. For such an interpretation of the preambular paragraph, see Benzing 2003, p. 596; Heller 2017, p. 398.; Kleffner 2009b, p. 242; Nouwen 2013, p. 38; Robinson 2010, p. 94. 130 Kleffner 2009b, p. 243; Pinto Soares 2015, p. 248; Nouwen 2013, p. 38. 131 Pinto Soares 2015, p. 248; Triffterer et al. 2021, para 17; Nouwen 2013, p. 38. 132 See ICC Statute, preambular para 10, Article 1: The International Criminal Court “shall be complementary to national criminal jurisdictions”. 133 Cryer et al. 2019, p. 155; El Zeidy 2008, p. 236; Kleffner 2003, p. 87; Stahn 2019, p. 223; Werle and Jeßberger 2020, para 314. 134 See ICC Statute, Article 17. 129

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how to design the relationship between international and domestic criminal courts.135 Instead of giving exclusive136 or primacy137 jurisdiction to the international court, or primacy jurisdiction to the domestic courts,138 the principle of complementarity considers domestic courts to take precedence as a rule but bestows the International Criminal Court with de iure oversight powers and the ability to step in if the State is unwilling or unable.139 In that regard, the principle of complementarity is a “coordination of concurrent jurisdiction between the ICC and national courts”,140 which accommodates the sovereignty interests of States to try defendants themselves but provides for a back-up plan to ensure the criminal accountability of perpetrators for the most serious crimes of international concern.141

2.3.2.2

Applicability of Complementarity to the Crime of Aggression

Before assessing whether complementarity contains an implied obligation, it has to be determined whether it is applicable to the crime of aggression.142 Its applicability to the crime of aggression seems to have been presumed since the Rome Conference by a combined reading of Article 1, which lends the International Criminal Court complementary jurisdiction over the “most serious crimes of international concern”, and Article 5 of the ICC Statute, which lists the crime of aggression, albeit undefined in 1998, as such a crime. This “Rome presumption” was affirmed during the drafting process of the Kampala Amendments and by the amended version of Article 20(3) of the ICC Statute, despite the “constructively ambiguous”143 interpretative Understanding 5.144 When the Special Working Group on the Crime of Aggression considered the text of the Statute for aggression-related conflicts before the Kampala Conference, there 135

On the variations, see in detail Werle and Jeßberger 2020, paras 307 et seq. See also Cassese et al. 2013, pp. 291 et seq. 136 The International Military Tribunal had exclusive jurisdiction over senior war criminals, see London Agreement, Article 1. See Werle and Jeßberger 2020, para 307. 137 This has been the case for the ad hoc Tribunals. See Statute of the International Tribunal for the former Yugoslavia, adopted 25 May 1993 by UN Security Council Resolution 827 (ICTY Statute), Article 9(1); Statute for the International Criminal Tribunal for Rwanda, adopted 8 November 1994 by United Nations Security Council Resolution 955 (ICTR Statute), Article 8(2). See in detail, Cassese et al. 2013, pp. 293 et seq. 138 This rule of concurrent jurisdiction could theoretically also exist, see Werle and Jeßberger 2020, para 312. 139 See ICC Statute, Article 17. See also Werle and Jeßberger 2020, paras 314 et seq. 140 Cassese et al. 2013, p. 296. 141 See Kleffner 2009b, p. 3. 142 For a critical perspective on the applicability see Trahan 2013; Koh and Buchwald 2015; Veroff 2016. But see, in contrast, Clark 2011 (“There is no obvious reason why the complementarity regime should not apply in principle to the crime of aggression.”); Wrange 2017. 143 On the practice of treaty negotiators to apply constructive ambiguity, see Hafner 2013, pp. 107 et seq. 144 See Review Conference of the Rome Statute 2010, Annex III.

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was general agreement that “no problems seemed to arise from the current provisions [on complementarity] being applicable to the crime of aggression”.145 At the Kampala Conference, there was no further substantial discussion about the principle of complementarity.146 As Clark describes, there was “apparently a tacit agreement that enough had been said on the subject”.147 In addition to this subtle affirmation by the drafting process, the applicability to the crime of aggression has been affirmed by adding Article 8bis to the list of crimes of Article 20(3) of the ICC Statute. Article 17(1)(c) of the Statute refers to this as one of three scenarios148 where the ICC shall not exercise its complementary jurisdiction.149 Article 20(3) now states that “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8bis shall be tried by the Court with respect to the same conduct”. By ending the previous silence of the Statute in Article 20(3), States closed off prior speculations. Since the addition of Article 8bis of the ICC Statute, it can no longer be speculated that national judgments on charges of aggression could never prevent the International Criminal Court from reopening proceedings or that it is impossible to conduct such trials at the national level.150 The amended version of Article 20(3) of the ICC Statute suggests the applicability of the principle of complementarity to the crime of aggression. The implicitly affirmed applicability is not challenged by the “constructively ambiguous” interpretative Understanding 5 which was inserted into the annex of the Kampala Amendments. It reads as follows: “It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.”151 This language calls into question the potential of the Amendments to create a right or obligation to criminalize and could be understood as expressing concerns about domestic jurisdiction over the crime of aggression by States other than the aggressor State.152 However, it does not explicitly deal with whether the principle of complementarity is applicable. It would be an expansive interpretation of the wording. Moreover, it is questionable whether a mere interpretative understanding to a treaty amendment153 145

See Barriga and Kreß 2011a pp. 433 et seq. Kreß et al. 2012, p. 93. 147 Clark forthcoming. 148 See Schabas and El Zeidy 2021, para 23. But see van Schaack 2012, p. 155 perceiving the first two scenarios as implicating the principle of complementarity and the third only as a consideration of the principle of nebis in idem; Kleffner 2009b, pp. 118 et seq. 149 McDougall 2021, pp. 377 et seq. 150 For the speculations on what the silence of Article 20(3) meant, see Reisinger Coracini and Tallgren 2021, para 43; van den Wyngaert and Ongena 2002, p. 725. 151 See Review Conference of the Rome Statute 2020, Annex III. On the genesis of Understanding 5, see Kreß et al. 2012, pp. 93 et seq. 152 Koh and Buchwald 2015, p. 276 fn. 59; Trahan 2013, p. 587 fn. 93; van Schaack 2012, p. 161; Veroff 2016, p. 751. 153 The Understandings in Annex III of the Resolution only required adoption at the Kampala Conference whereas Annex I, which contains the definition of the crime of aggression and the conditions for the exercise of jurisdiction, is “subject to ratification or acceptance” and thereby 146

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has the power to challenge the applicability of one of the “cornerstones”154 of the ICC Statute.155

2.3.2.3

Implied Obligation Due to Complementarity’s Premise of Concurrent Jurisdiction and the Statute’s Purpose to End Impunity?

From the applicable principle of complementarity, it may be possible to infer an obligation to implement the crime of aggression into domestic law. One of the arguments in favor of such an implied obligation is that “the principle of complementarity is based on the premise that States have an obligation to bring to justice suspected authors of genocide, crimes against humanity, war crimes and the crime of aggression”.156 The International Criminal Court serves as a “court of last resort”, suggesting the existence of a “court of first resort” with concurrent jurisdiction. If States were free to decide not to implement the crimes, Kleffner argues, a significant number of cases would be admissible before the International Criminal Court and make the International Criminal Court a de facto “court of first (and only) instance”.157 This conflicts with the idea of complementary jurisdiction and comes close to exclusive jurisdiction. To recall, the applicability of complementarity to the crime of aggression had been presumed since Rome and was confirmed in Kampala. Hence, its “unarticulated premise”158 of the existence of concurrent domestic jurisdictional competence may also imply an obligation to criminalize aggression under domestic law. The second argument in favor of an implied obligation is based on the Statute’s purpose to end impunity.159 A purposive interpretation suggests that the principle of complementarity serves to establish a system where the International Criminal Court and domestic courts complement each other to achieve the ultimate purpose of the Statute. Preambular paragraph 5 states the Statute’s purpose is to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.160 Due to the small number of cases the International requires an enhanced proof of legitimacy for the Understandings contained in Annex III, see Review Conference of the Rome Statute 2010, paras 1 and 3. This stands in stark contrast to the package adopted in Rome. The founding treaty of the International Criminal Court, including the provisions on the principle of complementarity, required “ratification, acceptance, approval or accession” by States to enter into force, see ICC Statute, Article 126. Similarly, Jurdi 2013, pp. 144 et seq. On the legal nature of the Understandings in general, see Heller 2012; Akande and Tzanakopoulos 2018. 154 See ICC (PTC), Lubanga, Decision, 8 November 2006, para 34, fn. 38. 155 For the same conclusion, see McDougall 2021, p. 378. This does not mean that Understanding 5 cannot become more relevant for other questions, see, e.g., Chaps. 7 and 8. 156 Donat Cattin 2012, p. 369. 157 Kleffner 2003, pp. 93 et seq. 158 This expression has been coined by Bassiouni 2008, p. 20. 159 For this line of reasoning, see Kleffner 2003, pp. 92 et seq.; Kleffner 2009b, p. 251. 160 Kleffner 2003, p. 93.

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Criminal Court can actually deal with, this purpose would be undermined if States were free to decide whether to establish and exercise jurisdiction over core crimes.161 The argument is even stronger regarding the crime of aggression, which is subject to more restrictive conditions for the Court’s exercise of jurisdiction.162 This leaves the majority of aggression cases beyond the International Criminal Court’s reach. Impunity becomes likely if States do not make their complementary contribution. Thus, a purposive interpretation of the principle of complementarity may allow the assumption of an implied obligation to criminalize aggression so to further the ICC Statute’s purpose of ending impunity. It is unsurprising that vague language opens the door for differing interpretations. Due to the vague language of the provisions on complementarity and the Preamble, States are not precluded from assuming an obligation to criminalize aggression. They could infer it from the unarticulated premise of concurrent jurisdiction and from their necessary contribution to further the Statute’s purpose to end impunity. It would make the law of the ICC Statute “harder” in terms of precision, if States adopted such an interpretation.163 However, Understanding 5 to the Kampala Amendments clarifies that “[i]t is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.”164 This “constructively ambiguous”165 understanding has prompted a broad spectrum of interpretations.166 At a minimum, Understanding 5 “state[s] the obvious”.167 It confirms the general view of States Parties that the Aggression Amendments do not create an obligation for States with respect to domestic legislation and adjudication, just like the ICC Statute has never created one. In that regard, the States Parties which adopted Understanding 5 at the Review Conference seem to have rejected an implied obligation as previously discussed for other ICC Statute crimes. From a compliance perspective, an implied but controversial obligation is anyway of little worth. To recall Guzman’s compliance theory, controversies about the existence of an obligation lower the reputational costs for potential violations. So why engage in an audacious inference of an obligation if it does not lead to implementation? One may leave the question of whether the principle of complementarity generates an obligation to criminalize undecided if the functioning of complementarity has the potential to bring States to criminalization anyway. An incentive to implementation 161

Ibid., pp. 92 et seq. See Chap. 5. 163 On the possibility of making obligations clearer through further interpretation and follow-up procedures, see Ingelse 1993, pp. 81 et seq. 164 See Review Conference of the Rome Statute 2010, Annex III. 165 On the practice of treaty negotiators in applying constructive ambiguity, see Hafner 2013, pp. 107 et seq. 166 Namely that it expresses “a subtle preference that the states parties do not incorporate the crime into their domestic codes”, see van Schaack 2012, p. 133. 167 See Kreß and von Holtzendorff 2010, p. 1216. Similarly, Clark 2010, p. 705, fn. 57; Jurdi 2013, p. 144; McDougall 2021, pp. 377 et seq.; Wrange 2017, p. 720. 162

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could be created by the enforcement mechanism provided by the ICC Statute. It may work in terms of Guzman’s compliance theory like a “direct sanction” for inaction or raise the reputational costs of inaction.

2.3.3 Coercive Potential of Complementarity Irrespective of an Obligation: The Threat of Judicial Interventions Although the ICC Statute “is concerned with international prosecution and not with the international enforcement of State obligations”,168 the principle of complementarity works in a way that comes close to a coercive enforcement mechanism which responds to the failure of States to act. The threat of judicial interventions, which can occur if States do not investigate or prosecute, has a coercive effect on States which prefer to ensure “ownership” over the adjudication of cases with a close link to their State. Especially when nationals commit crimes or crimes take place on the territory of a State, there is a substantial sovereignty-driven self-interest to ensure that domestic authorities are able to prosecute what they “own”.169 The threat of judicial intervention and of loss of ownership is normally predominant in the vertical relationship, caused by the complementary jurisdiction of the International Criminal Court (Sect. 2.3.3.1). However, its impact is currently negligible due to the Court’s limited jurisdictional reach. The threat could also exist more subtly in the horizontal relationship, caused by complementarity-inspired implementations of the crime of aggression by other States (Sect. 2.3.3.2). However, this is contentious and still lacks supporting empirical evidence.

2.3.3.1

Vertical Relationship: Future Judicial Interventions by the International Criminal Court?

In the vertical relationship, complementarity has indeed been described as having “sanctionist features”,170 “elements of a coercive mechanism”171 or a “threat-based side”.172 The failure of a State to investigate and prosecute can be “sanctioned” by a judicial intervention by the International Criminal Court working as a “watchdog court”173 and the consequential loss of ownership over the adjudication of cases

168

Seibert-Fohr 2003, p. 560. As Mégret puts it, “[a]lthough crime is obviously something that societies are keen to eliminate, it is also curiously something about which they feel a strong sense of ownership, especially when competing claims for jurisdiction arise.”, see Mégret 2005, p. 739. 170 Kleffner 2009b, p. 318. See also Hathaway and Shapiro 2011, pp. 333 et seq. 171 Kleffner 2009b, p. 326. 172 Stahn 2011, p. 255. 173 Jeßberger and Geneuss 2012, p. 1087; Stahn 2011, p. 253. 169

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with a close link to the State.174 Investigations and prosecutions by the International Criminal Court can be compared with the coercive means of “substitute performance”175 known in German administrative law since the International Criminal Court performs the act “owed” by the State closer to the crime. The “evil” imposed by this sanction is the loss of ownership over the adjudication of cases which have a close link to the State. This loss is perceived as “sovereignty costs”.176 The threat of this sanction “bears the potential of coercing States into investigating and prosecution”.177 This is why complementarity is often described as a “catalyst”.178 An additional compliance-increasing factor according to Guzman’s theory is concern about the reputational costs.179 This can be caused by the declaration of the International Criminal Court that a case is admissible and the respective State labelled as “unable or unwilling”.180 Whether the coercive potential of complementarity also plays out with respect to the preceding step of domestic criminalization is a decisive element of this chapter. Unlike the failure to investigate and prosecute, the failure to criminalize cannot be directly “sanctioned” by a judicial intervention of the International Criminal Court. When States decide to criminalize aggression under domestic law, the threat of a judicial intervention is more remote. It still requires the commission of the crime. Once aggression occurs, however, the declaration of admissibility by the International Criminal Court cannot be prevented by domestic investigations or prosecutions since the crime of aggression, unlike other core crimes, cannot be substituted by ordinary criminal offenses.181 Further, any retroactive criminalization of aggression would be precluded under the nullum crimen sine lege principle. Without substantive criminal legislation that covers the wrong of aggression, a State is considered to be ab initio “unable”182 in terms of Article 17 of the ICC Statute to exercise jurisdiction due to the “unavailability of a State’s national judicial system”.183 This is why the concerns 174

Provided all other conditions of Article 17 of the ICC Statute are met. See, in detail, Kjellsson 2019. 176 For the description of the loss of ownership as “sovereignty costs”, see Nouwen 2013, p. 367. See also Burke-White 2008, p. 69. Both refer to the definition by Abbott 1999, p. 375 whereby sovereignty costs are “the symbolic and material costs of diminished national autonomy”. 177 Kleffner 2009b, p. 320. 178 Burke-White 2008, p. 57; Charney 2001, p. 123; Kleffner 2009b, p. 309; Nouwen 2013, p. 21; de Vos 2020, pp. 27 et seq. 179 On the importance of reputational costs for compliance, see Guzman 2002, pp. 1861 et seq. 180 On the reputational costs of a declaration of admissibility and a judicial intervention by the International Criminal Court, see Jeßberger and Geneuss 2012, p. 1088; Kleffner 2009b, p. 320; Mayerfeld 2001, p. 88; Nouwen 2013, pp. 25 et seq.; Stahn 2011, p. 250. On the wide range of non-financial costs, see Burke-White 2008, pp. 69 et seq. 181 See Chap. 4, Sects. 4.2 and 4.3. 182 For the definition of “unable”, see ICC Statute, Article 17(3). On the drafting history, see Holmes 1999, pp. 48 et seq. 183 Office of the Prosecutor 2003, p. 15; El Zeidy 2008, p. 227. In detail, see Kleffner 2009b, pp. 156 et seq.; Stahn 2011, p. 253; Terracino 2007, p. 435. Or there can simply be no case that “is being investigated or prosecuted” (Article 17(1)(a)) or that “has been investigated” (Article 17(1)(b)) to 175

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about the coercive potential of complementarity can bring States to proactively criminalize aggression. That way, they can render cases before the International Criminal Court inadmissible through conducting domestic investigations and prosecutions.184 The German implementation seems to be motivated by such a concern. It aims to ensure that “the Federal Republic of Germany is always in a position to prosecute crimes falling within the jurisdiction of the ICC itself in cases involving Germany.”185 The coercive potential of complementarity is limited by the legal and factual reach, or the parallel jurisdiction, of the International Criminal Court.186 If cases are out the International Criminal Court’s reach, States do not need to enact implementing legislation out of fear of future judicial interventions. This assumption is in line with the reasoning of Kleffner. He ascribes a low catalyst effect of complementarity where the potential sphere of action of the International Criminal Court and States do not coincide, for example due to the Court’s limited factual capacity, a certain prosecutorial policy or the lack of sufficient gravity.187 This ultimately means that complementarity understood as a coercive enforcement system only pressures States into investigating, prosecuting and criminalizing what also falls within the reach of the Court. However, this unique asset of the ICC Statute to provide a coercive enforcement mechanism irrespective of a statutory obligation to prosecute is undermined by the restricted jurisdiction of the International Criminal Court regarding the crime of aggression. Chapter 5 shows that the jurisdictional regime upon State referral or proprio motu investigations applicable to the crime of aggression is more consensual than the one applicable to other ICC Statute crimes. It categorically excludes the territory and the nationals of non-States Parties,188 the acts of aggression by a State Party that has previously opted out189 and arguably the territory and the nationals of States Parties that have not ratified the Kampala Amendments.190 Under these limitations, the International Criminal Court cannot exercise jurisdiction on the mere basis of the ratification or ad hoc acceptance by the territorial State.191 Absent UN Security Council referral, it appears that it can only prosecute if the national render the case before the International Criminal Court inadmissible, see Nouwen and Lewis 2013, p. 123; de Vos 2020, p. 35. 184 On the encouraging effect of complementarity on domestic legislation, see also Mayerfeld 2001, p. 88; Razesberger 2006, p. 28; Stahn 2011, p. 253; Stahn 2019, p. 225. 185 See Deutscher Bundestag 2016, p. 11. 186 See on the different situations where the threat-based system of complementarity reaches its limits: Kleffner 2009b, pp. 321 et seq.; Stahn 2019, p. 226. 187 Kleffner 2009b, pp. 323 et seq. For more variables that have the potential to dilute complementarity’s catalyzing effect, see Nouwen 2013, pp. 389 et seq. 188 See ICC Statute, Article 15bis(5). 189 See ICC Statute, Article 15bis(4). 190 Provided Article 15bis(4) of the ICC Statute cannot enter into force on the basis of Article 5(2) and of the first sentence of Article 121(5) without triggering the latter’s second sentence. In detail, see Chap. 5, Sect. 5.4.4. 191 But see the jurisdictional regime applicable to other ICC Statute crimes in Article 12(2)(a) and (3) of the ICC Statute.

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State and the territorial State are States Parties to the ICC Statute, have ratified the Kampala Amendments and not opted out.192 As it currently stands, 44 States have ratified the Kampala Amendments.193 Without the necessary ratifications, the exercise of jurisdiction of the International Criminal Court over the crime of aggression depends upon an unlikely referral by the UN Security Council. Relying on the UN Security Council has already proven to be disillusioning regarding other crimes.194 Only two out of 17 situations currently under investigation have been brought to the International Criminal Court via UN Security Council referral.195 The situation in Ukraine has shown the limitations of the International Criminal Court to react to the crime of aggression. While investigations with respect to allegations of war crimes, crimes against humanity and genocide on the territory of the non-State Party Ukraine can proceed on the basis of its ad hoc acceptance under Article 12(3) of the ICC Statute,196 the investigations cannot cover the crime of aggression due to exclusion of Russia as a non-State Party under Article 15bis(5) of the ICC Statute and the expected Russian veto to a UN Security Council resolution. The coercive potential of complementarity is thus reduced regarding the crime of aggression but varies depending on whether States are Parties to the ICC Statute, have ratified the Kampala Amendments and whether they are permanent members of the UN Security Council. The coercive potential of complementarity is particularly strong for those that have ratified the Kampala Amendments, which creates the risk of an intervening International Criminal Court irrespective of a UN Security Council referral. 14 of the 16 implementers of the Kampala definition had previously ratified the Kampala Amendments.197 With respect to States Parties that have not yet ratified the Kampala Amendments, the coercive potential cannot be met if the International Criminal Court requires the ratification of the national State and the territorial State(s), as allegedly “confirmed” in 2017.198 Instead of criminalizing and prosecuting to avoid an intervention by the International Criminal Court, States Parties could achieve the same result by simply refraining from ratifying the Kampala Amendments. This keeps crimes of aggression committed by their nationals or on their territory out of the reach of the Court, provided the UN Security Council remains

192

Only the aggressor State could previously opt out, see Article 15bis(4) of the ICC Statute. As of December 2022. For the status of ratifications, see https://treaties.un.org/. Accessed 15 December 2022. 194 The situation in the non-State Party Syria, which caused the death of more than 500000 people between 2011 and 2020, has not yet been referred by the UN Security Council due to the veto of Russia and China. See in detail, Trahan 2020, pp. 278 et seq. On the death toll, see https://www.syr iahr.com/en/?p=157193. Accessed 15 September 2022. 195 See https://www.icc-cpi.int/pages/situation.as.px. Accessed 15 September 2022. 196 See the declaration lodged by the Government of Ukraine with respect to crimes committed throughout the territory of Ukraine from 20 February 2014 onwards: https://www.icc-cpi.int/ukr aine. Accessed 15 September 2022. 197 All implementers of the Kampala Amendments except for Afghanistan and Ecuador. See https:// treaties.un.org/. Accessed 15 September 2022. On the domestic implementations, see Chap. 6. 198 See ICC Assembly of States Parties 2017, operative para 2. For details, see Chap. 5, Sect. 5.4. 193

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paralyzed.199 The coercive potential of complementarity is also limited for non-States Parties. Although domestic investigations and prosecutions render cases inadmissible irrespective of whether they are conducted by States Parties or non-States Parties,200 the latter’s territory and nationals are ab initio excluded from the Court’s aggression jurisdiction according to Article 15bis(5) of the ICC Statute absent UN Security Council referral. Permanent members of the UN Security Council may also have little incentive to implement the crime of aggression into domestic law whilst a judicial intervention by the International Criminal Court can be prevented by their veto power.201 No permanent member has implemented the Kampala definition. The coercive potential of complementarity in the vertical relationship, which is normally strong compensation for the lack of an explicit statutory obligation to prosecute and to criminalize, is thus reduced by the restricted jurisdictional regime of the International Criminal Court over the crime of aggression.

2.3.3.2

Horizontal Relationship: “Legislative Pinochet Effect” of Existing Domestic Implementations?

What has not yet been explored and requires empirical evidence is the possible coercive potential of complementarity in the horizontal relationship between States. The domestic criminalization of aggression by the 16 implementers202 of the Kampala definition could create an incentive for other States that want to preclude external scrutiny. Driven by the interest to maintain “ownership” over crimes that are committed by their nationals or on their territory, States may legislate to enable their own courts to prosecute before another State tries. In that regard, the threat of parallel domestic jurisdiction by other States can be perceived as a “decentralized coercive enforcement mechanism”. Admittedly, the threat of parallel jurisdiction on the horizontal level is not strictly established by the principle of complementarity, which was designed for the vertical relationship to the International Criminal Court.203 However, domestic implementations tend to be inspired by the vertical functioning of complementarity. The horizontal coercive potential of domestic implementations can be perceived as consequential to the system of complementary jurisdiction of the International Criminal Court. The horizontal effect of parallel jurisdiction by other States is commonly discussed when investigations and prosecutions take place. The so-called “Pinochet effect”204 199

For a more optimistic perspective on the deterrent effect of possible Security Council referrals, see Trahan 2019, pp. 474 et seq. 200 See ICC Statute, Article 17(1)(a) and (b) “by a State” and not “by a State-Party”. 201 Similarly, Zimmermann and Freiburg-Braun 2019, para 429 who assume that members of the Security Council will continue to protect themselves and their allies against any attempts to refer a situation to the Court. 202 As of March 2022. See, in detail, Chap. 6. 203 Ryngaert 2011, p. 855. 204 See, in detail, Roht-Arriaza 2011; Roht-Arriaza 2007. On the notion, see also Kaleck 2012, pp. 377 et seq.; Werle and Jeßberger 2020, para 267.

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describes the stimulating effect caused by a third State’s exercise and not the mere establishment of universal jurisdiction on States closer to the crime.205 As Ryngaert suggests, however, the threat of prosecution by third States is not nearly as much of a deterrent as the threat of prosecution by the International Criminal Court whose higher level of international support makes arrests more likely.206 Applied to the prior stage of criminalization, which is the one discussed here, the stimulating effect caused by the legislative implementation of the crime of aggression seems to be even less significant than the originally conceived adjudicative “Pinochet effect”. The former is caused by enacted legislation capturing an uncertain number of future situations. The latter is caused by an initiated investigation into a specific person into specific conduct. Moreover, and in line with the considerations made with respect to the jurisdictional reach of the International Criminal Court, a horizontal stimulating effect requires the “spheres of action” to coincide. If the implementers of the Kampala Amendments were to only establish jurisdiction over cases if they were the aggressor or victim State, any stimulating effect of parallel domestic jurisdiction is likely to be limited to States which tend to be engaged in military conflict with them. Some implementers have established universal jurisdiction.207 This increases the reach of their courts to any aggressor. Universal jurisdiction can have a global stimulating effect on States. Overall, however, the low number of 16 domestic implementations of the crime of aggression suggests that the horizontal threat of a judicial intervention is still too weak to cause a “legislative Pinochet effect” on other States.

2.3.4 Conclusion to the ICC Statute To conclude, the Preamble and the operative part of the ICC Statute do not contain an explicit obligation to criminalize aggression under domestic law. As confirmed in Understanding 5 to the Kampala Amendments and in line with the common interpretation of the ICC Statute, the ICC Statute contains an implied obligation to criminalize neither aggression nor any of the ICC Statute crimes under domestic law. This is the case even though the purposive interpretation of the ICC Statute to end impunity, which is put forward in favor of an implied obligation, is more convincing with respect to the crime of aggression due to the restricted jurisdiction of the International Criminal Court. The ICC Statute can thus be described as soft in terms of the clarity of an obligation. This softness of the ICC Statute is normally compensated for by its hardness in terms of available enforcement mechanisms. The principle of complementarity 205

Jeßberger 2018, p. 3. See also Ryngaert 2011, pp. 863 et seq. Ryngaert 2011, p. 863. 207 Depending on the understanding of “universal jurisdiction”, there are twenty to thirty States that have established universal jurisdiction. Half of the Kampala Implementers apply universal jurisdiction to the crime of aggression. See Chap. 7, Sect. 7.7.4.2. 206

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establishes a coercive enforcement system with the threat of a judicial intervention by the International Criminal Court which helps to achieve the same desired result, namely domestic criminalization, irrespective of an obligation. However, the coercive potential of complementarity in the vertical relationship is reduced when it comes to the crime of aggression due to the restricted jurisdiction of the Court. If there is no risk of a “direct sanction” to lose “ownership” over future cases to the International Criminal Court, States do not need to proactively criminalize aggression to ensure their ability to render cases before the International Criminal Court inadmissible by domestic investigation and prosecution. States also do not need to proactively criminalize aggression to avoid a judicial intervention by courts of other States. Due to the small number of domestic implementations of the crime of aggression inspired by complementarity, the reach of domestic courts is limited. Hence, the coercive potential of complementarity in the horizontal relationship, the so-called “legislative Pinochet effect”, appears to be negligible. When it comes to the crime of aggression, the principle of complementarity is thus softer in terms of enforcement. Avenues to increasing the coercive potential of the complementarity principle include further ratifications of the Kampala Amendments, a UN Security Council willing to refer situations to the International Criminal Court and additional domestic implementations of the crime of aggression. Despite its reduced coercive potential, the principle of complementarity still has a non-coercive potential by sending vague moral appeal to States. They are called upon to contribute to the Statute’s “system of global criminal justice”208 to end impunity for crimes under international law.209 By joining the ICC Statute, States signed up for a system where the International Criminal Court and domestic courts are supposed to complement each other in the fight against impunity.210 This moral appeal exists even if it has not reached the level of an implied obligation and even without the support of a coercive enforcement system. Considering that States comply due to concern about reputational and direct sanctions,211 a system that has limited access to the “direct sanction” of the loss of “ownership” over aggression cases raises the importance of reputational costs for legislative inaction.212 The domestic implementation of the crime of aggression relies on softer enforcement measures common in international law, which tends to work on the basis of the “force of

208

See Ocampo 2007. This goal is reflected in the Preamble of the ICC Statute, in paras 4 and 5, which make clear that both domestic efforts and the establishment of the International Criminal Court aim to “put an end to impunity” and to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished”. Similarly, Stahn 2008, p. 91. 210 Ambos 2013, p. 269 Burke-White 2008, p. 68; Stahn 2008, p. 91. Similarly, Nouwen 2013, pp. 11 et seq.; Rastan 2010, p. 106. 211 Guzman 2002, p. 1827. 212 On the importance of reputational costs for compliance, see Guzman 2002, pp. 1861 et seq. On how the ICC can generally increase the reputational costs for domestic inaction, see Burke-White 2008, pp. 72 et seq. 209

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public opinion” and the “mobilization of shame”.213 However, civil society214 and international fora, such as the Assembly of States Parties, the Sixth Committee of the UN General Assembly or regional organizations,215 have not sufficiently used their power to raise the reputational costs of legislative inaction. They have rarely vigorously applauded the domestic implementation of the crime of aggression, nor condemned legislative inaction. Their long-standing indifference towards the crime of aggression, however, may have given way to a new sensitivity after the Russian invasion of Ukraine in 2022. International fora universally condemned the Russian aggression.216 Amnesty International even drew attention to the domestic laws of several States which would allow prosecution of those responsible for the crime of aggression.217 This new global awareness of the heinousness of aggression and the acknowledgement of existing domestic implementations could slightly increase the reputational costs for legislative inaction. Even in the absence of an obligation under the ICC Statute, a coercive enforcement system or considerable reputational costs for non-criminalization, there may still be States willing to implement the crime of aggression. These are States that are vulnerable of being the victim of unlawful use of force by other States. They may still have a strong self-interest to legislatively “sanctuarize” or “earmark” their territory as one in which aggressors risk domestic prosecution.218

2.4 International Human Rights Law The Preamble of the ICC Statute is famously “recalling” that it is the “duty of every State to exercise its criminal jurisdiction over those responsible for international

213

On the “force of public opinion” and the “mobilization of shame”, see Damrosch 1998, pp. 19 et seq. 214 For a good summary, see Weisbord 2017. An exception is the Parliamentarians for Global Action, a worldwide network of parliamentarians, and the Global Institute for the Prevention of Aggression, which promote the ratification and implementation of the Kampala Amendments. Amnesty International and Human Rights Watch, in contrast, tend to abstain from discussions about the crime of aggression. See, in detail, Sect. 2.4.3. 215 The rare time the European Union raised its voice to call on Member States “to swiftly align national legislation with the Kampala Amendments’ definitions...to enable national investigations and prosecutions of the crimes” was in 2014. See European Parliament 2014. 216 See, e.g., UN General Assembly 2022a; UN Human Rights Council 2022; European Union 2022. 217 See https://www.amnesty.org/en/latest/news/2022/03/russia-ukraine-invasion-of-ukraine-is-anact-of-aggression-and-human-rights-catastrophe/. Accessed 15 September 2022. 218 For this view, see in general Mégret 2006, p. 30; Schabas and Pecorella 2021, para 35 who argue that the jurisdictional regime as established in Article 12(2) of the ICC Statute gives States an incentive to ratify the ICC Statute to “send a message of deterrence” that the crimes will not go unpunished on their territory.

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crimes”.219 This creates the presumption of a duty stemming from other sources of international law that can be “re-called” to exercise criminal jurisdiction over international crimes,220 such as the crime of aggression. One of the sources that is discussed in that regard is human rights law. The following assessment is limited to the ICCPR and the ECHR. Compared to general international law, the obligations under the ICCPR and ECHR are harder due to the additional enforcement mechanisms States have installed by establishing treaty bodies that interpret the treaties and monitor compliance.221 The ICCPR establishes the Human Rights Committee as a monitoring body which regularly publishes interpretations of the Covenant in general comments222 and receives periodic reports of States Parties on how the Covenant is being implemented.223 Despite being non-binding,224 the official interpretation published by a specialized treaty body raises the reputational costs in case of non-compliance by rendering the obligations under the ICCPR clearer and the violations unambiguous.225 The State reporting procedure also induces compliance by shaming noncompliant States.226 The ECHR can rely on a higher level of “hardness” in terms of enforcement. The European Court of Human Rights has jurisdiction over all matters concerning the interpretation and application of the ECHR.227 States228 and individuals229 have recourse to the Court whose judgments on the violations of the ECHR have binding force.230 On an exceptional basis, the Court can also grant interim measures231 as it did in face of the real and continuing risk of serious violations of 219

See ICC Statute, preambular para 6. Exercising criminal jurisdiction includes the exercise of prescriptive, adjudicative and executive jurisdiction. The creation of criminal provisions is thus covered by this term. See Chap. 7, Sect. 7.1.1. 220 For such an interpretation of the preambular paragraph, see Benzing 2003, p. 596; Heller 2017, p. 398; Kleffner 2009b, p. 242; Nouwen 2013, p. 38. 221 On the importance of delegating the interpretation and monitoring to a third party, see Shaffer and Pollack 2013, p. 213. For an overview of decentralized mechanisms available under general international law, see Kälin and Künzli 2019, pp. 188 et seq. 222 The UN Human Rights Committee takes the authority for elaborating general comments from Article 40(4) of the ICCPR. See UN Human Rights Committee, Fact Sheet No. 15 (Rev.1), p. 24: https://www.ohchr.org/Documents/Publications/FactSheet15rev.1en.pdf. Accessed 15 September 2022. 223 These periodic reports are submitted to the UN Human Rights Committee according to Article 40 of the ICCPR. 224 The General Comments issued by the UN Human Rights Committee are not binding but “important interpretative pronouncements on the meaning and scope of the provisions of the Covenant”, see Mackenzie et al. 2010, para 14.15. Similarly, Tomuschat 2014, p. 189. See also Kälin and Künzli 2019, p. 214. 225 Guzman 2002, p. 1863. 226 Hathaway and Shapiro 2011, p. 300. 227 See ECHR, Article 32(1). 228 See ECHR, Article 33. 229 See ECHR, Article 34. 230 See ECHR, Article 46(1). 231 See Rule 39, Rules of Court.

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the rights of the civilian population under the ECHR concerning the Russian military operations on Ukrainian territory.232 The political body of the ECHR, the Council of Europe, has the power to expel members that seriously violate Article 3 of its Statute.233 This article obliges all members to accept, inter alia, the enjoyment of human rights by all persons within their jurisdiction. The Council used this “ultimate sanction” for the first time after the Russian aggression against Ukraine in 2022.234 The ECHR is considered “by far the strongest of all human rights regimes (if far from perfect) in its ability to effectively secure compliance and have a direct impact on state policy”.235 Like the previous discussion of domestic constitutional law, an obligation under human rights law to criminalize aggression could be inferred from the aggressionrelated prohibition of any propaganda for war under Article 20(1) of the ICCPR or stem from the general obligation to ensure human rights under the ICCPR and the ECHR.

2.4.1 A Fortiori Obligation from the Obligation to Prohibit Propaganda for War Under Article 20(1) of the ICCPR? The considerations against assuming an obligation to criminalize aggression on the basis of the constitutional prohibition of propaganda for war apply mutatis mutandis to its international counterpart in Article 20(1) of the ICCPR.236 There is limited overlap between the subject matter of the obligation to prohibit propaganda for war and the obligation to criminalize aggression, which concerns the “psychological planning and preparation for wars of aggression”.237 Some States refer in their periodic reports238 to domestic provisions that criminalize aggression to demonstrate that they give effect to Article 20(1) of the ICCPR.239 It conflicts with the broad legislative discretion of States, however, to assume an obligation to criminalize even

232

See ECtHR, Ukraine v Russia (X), Decision, 1 March 2022, Application No. 11055/22. See, in detail, Statute of the Council of Europe, Article 8. 234 See Council of Ministers of the Council of Europe 2022. 235 Milanovic 2011, p. 4. Similarly, Kälin and Künzli 2019, p. 205. 236 It states: “Any propaganda for war shall be prohibited by law.” On Article 20 of the ICCPR, see Joseph and Castan 2013, paras 18.72 et seq.; Kearney 2007, pp. 133 et seq.; Nowak 1989, Article 20; 237 See the indictment in the Ministries case, US Military Tribunal Nuremberg, The United States of America vs. Ernst von Weizäcker et al., in Allied Control Council No. 10 1949a, p. 26. 238 These periodic reports are submitted to the UN Human Rights Committee according to Article 40 of the ICCPR. 239 See, e.g., Czech Republic 2006 which refers to a proposal for the introduction of new criminal offenses of instigation of an offensive war and the preparation of an offensive war; Paraguay 2004, para 482 which refers to Article 271 of the Criminal Code that criminalizes the preparation of a war of aggression. 233

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non-communicative preparatory acts240 and other forms of committing the crime of aggressive war. It also runs counter to the systematic interpretation of Article 20(1) of the ICCPR as a mandatory limitation to the freedom of expression in Article 19 of the ICCPR.241 This is why it is not possible to infer an obligation to create a criminal provision on the crime of aggression from the obligation under Article 20(1) of the ICCPR.

2.4.2 From the Obligation to Ensure Human Rights to the Obligation to Criminalize Serious Violations However, an obligation to criminalize aggression can be inferred from the general provisions under the ECHR and ICCPR that set out an “obligation to ensure” human rights combined with the right to life, or even the right to peace.242 While the obligation to criminalize, or rather the obligation to prosecute serious human rights violations, is discussed in international criminal law, this discussion normally omits the crime of aggression or rejects its relevance in the field of human rights law.243 The pre-Kampala era might have excused the cautious omission, but it is now warranted to have a closer look at the potential of human rights law to generate an obligation to criminalize aggression. The inference of such an obligation from human rights law requires several interpretative steps. These are similar to those presented above with respect to the constitutional obligation to protect fundamental rights. First, it is necessary to clarify whether an obligation to criminalize human rights violations can be extracted from human rights treaties (Sect. 2.4.2). Secondly, it will be explored whether the crime of aggression, often understood as a crime directed against the sovereignty of another State, can violate human rights (Sect. 2.4.3). Bearing in mind that the applicability of human rights law is geographically limited, it shall be assessed how this might affect the obligation to criminalize a transboundary crime, like aggression (Sect. 2.4.4). In line with the common conceptualization of fundamental rights under constitutional law, international human rights law imposes both a negative obligation to refrain from directly violating human rights and a positive obligation to protect human rights.244

240

Such as military training, strategic planning of attacks or armament. Nowak 1989, Article 20 para 2; Joseph and Castan 2013, para 18.72. 242 The right to peace is not explicitly listed in the ICCPR and the ECHR but it is discussed under customary international human rights law. 243 See, e.g., Seibert-Fohr 2009; Tomuschat 2002, pp. 341 et seq. 244 On positive and negative obligations under human rights law, see Kälin and Künzli 2019, pp. 87, 95 et seq.; Shelton and Gould 2013; Tomuschat 2002, pp. 315 et seq. 241

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The legal bases of the duty to protect are primarily the provisions in human rights treaties that require States to “ensure” or to “secure” human rights.245 Such a duty to ensure,246 however, cannot automatically be equated with a duty to prosecute or to criminalize. Traditionally, human rights law leaves States discretion on how to fulfil their duty.247 The resort to criminal law is perceived as “the most effective insurance”248 to protect human rights in comparison to civil, administrative or disciplinary measures. Especially in case of serious human rights violation, the margin of discretion can be reduced to an obligation to resort to criminal law.249 The inference of an obligation to prosecute from human rights law originates from the landmark case of Velásquez-Rodríguez of the Inter-American Court of Human Rights.250 While the Inter-American Court of Human Rights did not explicitly consider an obligation to criminalize certain conduct,251 the European Court of Human Rights252 and the UN Human Rights Committee253 have explicitly interpreted human rights, especially the right to life and the prohibition of torture, as a source of an obligation to criminalize.254 In principle, the obligation to criminalize is a “positive” one as it requires action, especially with respect to human rights violations of third parties. However, its fulfillment also helps the State to comply with its negative obligation to refrain from human rights violations by deterring its agents from unlawful behavior. The obligation to 245

See ICCPR, Article 2(1): “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…”; ECHR, Article 1: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” See Seibert-Fohr 2009, p. 198; Roht-Arriaza 1995, p. 29. For a critical view, see Scharf 1996, pp. 48 et seq. 246 The duty to ensure will be used in the following interchangeably to the ECHR’s duty to “secure”. 247 Jeßberger 1996, p. 295; Orentlicher 1991, pp. 2540 et seq.; Roht-Arriaza 1995, p. 28; Tomuschat 2002, p. 319. 248 Orentlicher 1991, p. 2542. Similarly, Werle and Jeßberger 2020, para 279. 249 See also Seibert-Fohr 2009, p. 113; Tomuschat 2014, p. 370. 250 See Inter-American Court of Human Rights, Velásquez-Rodríguez v. Honduras, Judgment, 29 July 1988, para 166. See in detail Roht-Arriaza 1995, pp. 30 et seq. 251 For a critical perspective on the value of the judgment for an obligation to criminalize, see Scharf 2007, pp. 50 et seq.; Tomuschat 2002, p. 321. 252 This line of jurisprudence famously started with respect to the right to private life, see ECtHR, X and Y v. Netherlands, Judgment, 26 March 1985, Application No. 8978/80, para 27. With respect to the right to life, see, e.g., ECtHR, Osman v. the United Kingdom, Judgment, 28 October 1998, Application No. 23452/94, para 115; ECtHR, Mahmut Kaya v. Turkey, Judgment, 28 March 2000, Application No. 22535/93, para 85. With respect to the prohibition of torture, inhuman or degrading treatment, see ECtHR, A v. the United Kingdom, Judgment, 23 September 1998, Application No. 25599/94, para 22. 253 See UN Human Rights Committee 1982, para 1; UN Human Rights Committee 1992, para 8; UN Human Rights Committee 2018, para 20. See also UN Human Rights Committee 2004, para 18. 254 Seibert-Fohr 2009, pp. 12 et seq. (on the Human Rights Committee), 112 et seq. (on the ECHR). See also Ashworth 2015, pp. 200 et seq. For an overview of case law, see Peters 2016, pp. 257 et seq.; Tomuschat 2002, pp. 319 et seq.

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criminalize can also ensure the performance of other positive obligations to take repressive measures once the crime is committed, such as the obligation to prosecute and to punish. Prosecution and punishment require the previous criminalization of the conduct due to the nullum crimen nulla poena sine lege principle.255 Compared to other positive obligations, such as the obligation to take preventive operational measures or to prosecute, the obligation to criminalize is less onerous. It can be discharged by simply creating a law. These aspects of the obligation to criminalize, namely its supportive function for the negative obligation to abstain and its less onerous nature, may affect the discussion of its extraterritorial applicability which is more easily assumed for negative and less burdensome obligations.256

2.4.3 Human Rights Relevance of the Crime of Aggression Due to the required serious human rights violations, there can be no obligation to criminalize if the crime of aggression lacks human rights relevance. Major players of civil society have claimed its irrelevance to human rights or have remained neutral.257 Amnesty International, for example, justified its neutral position by its mandate. “As an organization that focuses on protecting civilians and exposing violations of human rights and humanitarian law in armed conflict”, it argues, “this neutrality is essential for the effectiveness and credibility of Amnesty International’s work to address violations by all parties to conflicts”.258 Similarly, Human Rights Watch explained its silence with its mandate as “a human rights organization whose focus is jus in bello”.259 A crime that focuses on the international use of force and primarily affects State sovereignty, it is claimed, is not a human rights issue.260 The neutrality of these major players of civil society seems to be less categorical regarding the Russian aggression against Ukraine in 2022. Amnesty International did not shy away from

255

See also Lazarus 2012. Under human rights law, negative obligations usually have a broader applicability than positive obligations. For including considerations, such as whether obligations are onerous or whether they are only prophylactic to ensure the compliance of negative obligations, see Milanovic 2011, pp. 216 et seq. 257 On the indifference and the concerns of major non-governmental organizations, see Weisbord 2017. See also Mégret 2017, p. 1427; Schabas 2017a, pp. 357 et seq.; Stahn 2019, p. 96. 258 See with respect to the Activation of the Jurisdiction of the International Criminal Court over the Crime of Aggression, Amnesty International 2017, p. 4; with respect to the Kampala Conference, see Amnesty International 2008, p. 22: “Amnesty International has not taken a position on the definition of the crime of aggression because its mandate—to campaign for every person to enjoy all of the human rights (civil and political and economic, social and cultural rights) enshrined in the Universal Declaration of Human Rights and other international human rights standards—does not extend to the lawfulness of the use of force.” 259 See Human Rights Watch 2010. 260 Weisbord 2017, p. 1314. 256

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calling the Russian invasion a crime of aggression and acknowledged its real and potential massive impact on civilians’ lives, safety and well-being.261 Despite these more current developments, the protection of individual interests by the criminalization of aggression is less straightforward than the protection of international peace and State sovereignty.262 Due to the vague “manifest” threshold and its “gravity” qualifier, however, it can not be excluded that the crime of aggression will be interpreted as requiring individual interests be put at serious risk. It has also been claimed that the crime of aggression can hardly be committed without causing harm to individuals.263 This author also claims that the crime of aggression serves to protect individual interests from the lower level of protection, which typically results from the shift from the law during peacetime to international humanitarian law. Translated into the language of human rights law, the crime of aggression affects the right to life and the emerging right to peace, which shall be assessed in the following.

2.4.3.1

Aggression and the Human Right to Life

An obligation to criminalize aggression could be inferred from the right to life if aggression’s “manifest violations” of the ius ad bellum leads to a violation of this individual right. According to the traditional understanding of the ICCPR and the ECHR, however, killings that result from aggression but comply with ius in bello are not a violation of the human right to life. Killings in compliance with the ius in bello, synonymous with international humanitarian law, prevent the deprivation of life from being “arbitrary” in the sense of Article 2 of the ICCPR.264 They constitute “lawful acts of war” in the sense of Article 15(2) of the ECHR, which allows for a derogation from the right to life.265 The indifference of human rights law towards violations of ius ad bellum

261

See https://www.amnesty.org/en/latest/news/2022/03/russia-ukraine-invasion-of-ukraine-is-anact-of-aggression-and-human-rights-catastrophe/. Accessed 15 September 2022. 262 In detail, see Chap. 3, Sect. 3.5. 263 McDougall 2021, pp. 51 et seq. 264 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Report 1996, p. 226, para 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, para 105. 265 Johann 2015, para 12; Kälin and Künzli 2019, pp. 270 et seq. Even in the usual case where a formal derogation is lacking, the European Court of Human Rights takes account of international humanitarian law when interpreting the Convention. This has been established with respect to Article 5 (right to liberty), see ECtHR, Hassan v. the United Kingdom, Judgment, 16 September 2014, Application No. 29750/09, para 103. The Court is more reluctant to automatically read international humanitarian into Article 2 (right to life) but requires a formal derogation under Article 15, see ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, paras 21 et seq.

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and its focus on violations of ius in bello—the law applicable in armed conflict— has implicitly been affirmed with respect to the ICCPR in the jurisprudence of the International Court of Justice.266 There are, however, several reasons why the right to life should be understood as being violated by acts in contravention of ius ad bellum. From a linguistic point of view, the terms of “arbitrary” under the ICCPR and “lawful acts of war” under the ECHR are open enough to include considerations based on ius ad bellum. This also better aligns with the historical use of the term “acts of war” which had significance in the context of ius ad bellum.267 The legal condemnation of killings that conflict with the ius ad bellum better furthers the overall effet utile of both human rights treaties.268 Bearing in mind that the right to life is the “supreme right” whose “effective protection is the prerequisite for the enjoyment of all other human rights”,269 broadening its protection ultimately broadens the protection of all other human rights. Broader protection is achieved by perceiving killings as violations of the right to life which are caused by acts of aggression but normally tolerated if they are in compliance with international humanitarian law. Forcing human rights law to remain indifferent towards this part of the lethal impact of armed conflicts, namely towards the killings of combatants and the killings of civilians as collateral damage, is illogical considering its different purpose. It serves to generally protect human rights, while international humanitarian law only seeks to reduce human suffering during armed conflicts.270 The human rights relevance of aggression has recently been affirmed by the UN Human Rights Committee in its General Comment no. 36 on the right to life under the ICCPR.271 This body of eighteen “persons of high moral character and recognized competence in the field human rights”272 found that “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the [International] Covenant [on Civil and Political Rights]”.273 This 266

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Report 1996, p. 226, para 22: “The test of what is an arbitrary deprivation of life […] falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict which is designed to regulate the conduct of hostilities.”; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, para 105. 267 It described conduct such as an armed attack that would initiate a state of war, see Schabas 2015a, pp. 601 et seq. For a historical perspective, see also Krieger 2013b, para 36; Alleweldt 2013, paras 77 et seq.; Greenwood 1999, para 213. 268 On the “effet utile” or principle of effectiveness in the interpretation of international treaties, see Herdegen 2013, paras 30 et seq.; Lauterpacht 1949, pp. 67 et seq. 269 UN Human Rights Committee 2018, para 2. 270 On this difference between human rights law and humanitarian law, see Meron 2006, p. 8. 271 See UN Human Rights Committee 2018. 272 See ICCPR, Article 28(2). 273 See UN Human Rights Committee 2018, para 70. For previous considerations to consider that the threat to peace could result in an “arbitrary” deprivation of the right to life, see Schabas 2015b, p. 382. On the criticism of General Comment No. 36 raised by some States, see Darcy 2021, p. 123; Lieblich 2021.

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“striking proposition”274 confirms that the crime of aggression, which is by definition based on an act of aggression, has a human rights relevance, at least whenever it results in deaths.275 It thereby violates ipso facto, irrespective of an additional violation of international humanitarian law, the right to life.276 The European Court of Human Rights, in contrast, has not adopted this approach.277 Previous case law dealing with the use of armed force did not include ius ad bellum considerations.278 A first cautious step under the regime of the ECHR towards a more progressive approach has been made by Judge Keller in her concurring opinion to the Grand Chamber’s judgment in Georgia v. Russia (II) where she embraced the possibility of including ius ad bellum considerations.279 It remains to be seen whether the European Court of Human Rights will take this cautiously suggested path. The acceptance of the human rights relevance of aggression by respective human rights bodies, however, is important to increase the reputational costs of legislative inaction and renders the possible human rights obligation somehow “harder”. According to Guzman’s compliance theory, States are concerned about “the reputational consequences of a violation which are most severe when the obligation is clear and the violation is unambiguous”.280 General Comment no. 36 provides an interpretation of the ICCPR by a competent international treaty body which makes it more difficult for States to justify their inaction. They can less easily reject the existence 274

Clark 2020, p. 267. With respect to practices inconsistent with international humanitarian law, the Human Rights Committee clarified that it suffices that they entail a risk to lives of civilians and other protected persons to violate the right to life. See UN Human Rights Committee 2018, para 64. 276 See also Darcy 2021, p. 127. 277 Darcy 2021, p. 122. 278 It either only assessed the relationship between human rights law and international humanitarian law, see, e.g., with respect to the events occurring in the context of the armed conflict between Georgia and Russia in 2008 in ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, paras 92 et seq.; or in the case of Hassan which dealt with events after the invasion of Iraq by a coalition of armed forces of the United States, the United Kingdom and others, see ECtHR, Hassan v. the United Kingdom, Judgment, 16 September 2014, Application No. 29750/09, paras 35 et seq. Alternatively, it declared the case inadmissible without addressing the interplay between human rights law and other fields of law, see, e.g., the NATO bombing of Belgrade in ECtHR, Bankovi´c and others v. Belgium and others, Decision, 12 December 2001, Application No. 52207/99. 279 See ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, concurring opinion of Judge Keller, paras 28 et seq: “Objections have been levelled against the Court addressing jus ad bellum. I do not accept them…In seeking to resolve the Convention dispute before it, the Court would not have been acting ultra vires or illegitimately setting itself up in the place of the International Court of Justice or the International Criminal Court. The United Nations Human Rights Committee has asserted a similar competence as a result of its General Comment No. 36 of 2018 on the right to life.” She concluded with an appeal to the Court that although it ultimately did not apply the norms of international humanitarian law and ius ad bellum in the present proceedings, “that should not dissuade it from doing so in a future case in which the ‘threshold criterion’ of ‘jurisdiction’ under Article 1 is satisfied.” 280 Guzman 2002, p. 1863. 275

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of an obligation to criminalize aggression in reference to the alleged, but now gradually debunked, human rights irrelevance of aggression.281 Although the UN Human Rights Committee did not explicitly claim an obligation to criminalize aggression, it has accepted a violation of the right of life in case of killings that result from an act of aggression. Combined with the general obligation to criminalize serious human rights violations, this may allow the assumption of an obligation to criminalize those acts of aggression that result in killings.282 Such an assumption further depends on whether human rights law applies in the transboundary context of aggression.283

2.4.3.2

Aggression and the Emerging Human Right to Peace

The human rights relevance of the crime of aggression also lacks broad recognition in literature.284 The link to human rights law is less evident if the crime of aggression is understood as a crime that can be committed without killing a single person.285 Even where aggression does not cause the loss of life, there could be another human right which addresses the fragile situation of humans after the breach of international peace. As further explained in Chap. 3, the crime of aggression triggers international humanitarian law which leads to a lower level of protection for individual interests in comparison to the law applicable during peacetime.286 It is perfectly legal once international humanitarian law applies to kill combatants and to cause the death of civilians as collateral damage. The prohibition of killing under domestic criminal law is thus relaxed regarding civilians and even suspended with regard to combatants, although it is normally perceived as elementary for human coexistence.287 Similarly, other prohibitions, such as the prohibition of damage to property under domestic criminal law, are relaxed with regard to civilian objects and suspended with regard to military objectives under international humanitarian law. The emerging human right to peace captures this fragile situation and the abstract endangerment of human rights during armed conflicts.288 To be clear, the human right to peace is not explicitly enshrined in the ECHR or the ICCPR. At most, it could be considered a customary human right.289 It may be 281

UN Human Rights Committee 2018, para 70. One may discuss whether aggression which has only threatened the right to life is also covered by the obligation to criminalize. 283 This will be discussed in Sect. 2.4.4. below. 284 See Ambos 2018b, p. fn. 15; Creegan 2012, pp. 62 et seq.; Safferling 2011, para 174. 285 For the position that the crime of aggression can be committed without killing persons, see Creegan 2012, p. 62; Dannenbaum 2018, pp. 102 et seq. 286 Bearing in mind that ordinary criminal law and human rights law have a restricted extraterritorial application, one may welcome the application of a regime that has a moderating effect abroad. For the transnational application of German criminal law, see Jeßberger 2011. On the extraterritorial application of human rights law, see Murray 2016. 287 Werle and Jeßberger 2020, para 1147. 288 On the human right to peace, see Schabas 2017a; Mégret 2017, pp. 1439 et seq. 289 This is why it could have been discussed under the customary law avenue as well. 282

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irrelevant for the monitoring bodies of the ECHR or ICCPR. For States, however, a human rights obligation to criminalize matters, even if it concerns a customary human right. While not being codified as a full-fledged right, traces of a human right to peace can be seen, inter alia, in the prohibition of any propaganda for war in Article 20(1) of the ICCPR,290 the acknowledgment of the “principles proclaimed in the Charter of the United Nations” in the Preamble of both International Covenants,291 and the “freedom from fear”, coined by Franklin D. Roosevelt 292 and referred to in the Preamble of the Covenants and of the Universal Declaration of Human Rights.293 Traditionally, the right to peace has been “slightly neglected in our age”.294 Its existence and understanding are controversial.295 The discussion, however, has received fresh impetus from UN bodies in recent years,296 namely by the Declaration on the Right to Peace adopted by the UN General Assembly on 19 December 2016 as previously adopted by the UN General Assembly Third Committee and the UN Human Rights Council.297 Article 1 of the Declaration states that “[e]veryone has the right to enjoy peace such that all human rights are promoted and protected, and development is fully realized”. It understands the multilayered right to peace as a vital requirement for the full enjoyment of all human rights.298 The criminalization of the unlawful use of force— the crime of aggression—is the corollary of this right to peace.299 This raises the question of whether the recent Declaration on the Right to Peace of the UN General Assembly can serve as a basis for an obligation to criminalize aggression. Article 290

See UN Human Rights Committee 1983, para 2. See ICCPR, Preamble; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3, entered into force 3 January 1976 (ICESCR), Preamble. 292 See Franklin D. Roosevelt, State of the Union Address, 6 January 1941. He stated to look forward to a world founded upon four essential human freedoms, namely freedom of speech, freedom of worship, freedom from want and freedom from fear. The latter means “a worldwide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor anywhere in the world.” 293 Schabas 2007, pp. 608 et seq. See ICCPR, Preamble; ICESCR, Preamble; Universal Declaration of Human Rights, General Assembly Resolution 217A(III), UN Doc. A/RES/217(III), 10 December 1948, Preamble. 294 Mégret 2017, p. 1439. 295 In particular as regards its existence, its conceptualization (collective right of peoples to peace or individual right to peace) and its specific content. See Schabas 2017a; Tickhonov 1985, p. 98; Witschen 2018. 296 For an overview of the initiatives within expert bodies, regional organizations and UN agencies since the 1980s that have affirmed a right to peace, see Schabas 2017a, pp. 352 et seq. See also Guillermet Fernández and Fernández Puyana 2017, pp. 101 et seq. 297 See UN General Assembly 2016a; UN General Assembly Third Committee 2016; UN Human Rights Council 2016. 298 See also Alston 1980, p. 328 (“sine qua non for the full realization of all human rights”); Tehindrazanarivelo and Kolb 2006, para 13 (“its guarantees and its implementation are prerequisites for the enjoyment of all other human rights”). For a detailed analysis of Article 1, see Guillermet Fernández and Fernández Puyana 2017, pp. 266 et seq. 299 Schabas 2017b, pp. 31 et seq. 291

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3, which stipulates that “States…should take appropriate sustainable measures to implement the present Declaration”,300 could be read as calling for the domestic criminalization of a crime that protects the right to peace.301 The UN General Assembly, however, is in principle vested with recommendary powers only,302 which is why its resolutions are classical “soft” law due to their non-binding nature.303 A UN General Assembly resolution can sometimes have “normative value” and, depending on “its content and the conditions of its adoption”, “provide evidence important for establishing the existence of a rule or the emergence of an opinio juris”.304 Thus, the Declaration on the Right to Peace may perpetuate the view of States of the existence of a customary right to peace. As to the conditions of its adoption, the declaration was adopted by majority vote in all three fora, namely in the UN General Assembly, in its Third Committee and in the UN Human Rights Council.305 The view expressed in the Declaration is thus shared by many States. However, countries, such as Australia, Canada, France, Germany, Japan, United Kingdom and the United States, were among the 34 States that voted against the resolution.306 Moreover, several States deplored the lack of a common understanding of the right to peace.307 A closer look at the content of the Declaration reveals why these States deplored the existing ambiguity of the right to peace. The language chosen for the provision that enshrines the right to peace is considerably soft. States intentionally chose the more ambiguous notion of the “right to enjoy peace” instead of “right to peace” to make Article 1 more acceptable.308 Articles 2 and 3, provisions that might be read as 300

Bearing in mind that the UN General Assembly is well aware of its lacking law-creating authority, the use of such hortatory language is not surprising. 301 See also Tickhonov 1985, p. 107, who lists as measures at the international and national level to put into effect the main function of the right to peace to protect the right to life, inter alia, the prohibition of aggressive war. 302 Except for budgetary matters, see Articles 10–14 of the UN Charter. On the legal value of UN General Assembly resolutions, see in general Higgins 1995, p. 24; Shaw 2017, p. 85; Shaw 2021, pp. 96 et seq. 303 See Abbott et al. 2000, p. 410 where an obligation created by an institution without law-creating authority is mentioned as an example of law which is soft in terms of the binding nature. 304 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Report 1996, p. 226, para 70. 305 See UN General Assembly 2016a; UN General Assembly Third Committee 2016; UN Human Rights Council 2016. 306 For an overview of the States that voted in favor, against or abstained, see UN General Assembly 2016b, p. 26. 307 Namely Iceland (“There was no common legal understanding of the right to peace, or of its rights bearers and duty bearers”); Slovakia on behalf of the European Union (“there was no legal basis in international law for a right to peace. There was no internationally agreed definition of peace, nor was there clarity about the rights bearers or duty bearers of such a right.”); Japan (“there was no legal consensus on the link between peace and human rights”); Canada (“no agreement on the right to peace in international law”). See https://www.un.org/press/en/2016/gashc4190.doc. htm. Accessed 15 September 2022. 308 Guillermet Fernández and Fernández Puyana 2017, pp. 266 et seq.

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providing evidence of an obligation to criminalize aggression, are also considerably soft. The appeals addressed to States that are contained therein are not written in compulsory but hortatory language (“should”, “appropriate sustainable measures”). According to Article 2, “States should…guarantee freedom from fear and want as a means to build peace within and between societies”. Article 3 provides that “States…should take appropriate sustainable measures to implement the present Declaration”. Due to the opposition of several countries to the adoption of the Declaration and its somewhat vague content, it is difficult to claim the existence of a customary human right to peace or to infer a corresponding duty of States to criminalize acts that violate the right to peace. Even if the Declaration led to the crystallization of the human right to peace with corresponding duties, the softness in terms of precision and persisting controversies would lower the reputational costs of violating the obligation by legislative inaction. Clarity does not exist in that regard for either the obligation or the violation. The Russian invasion of Ukraine in 2022 has not led to a clarification. The right to peace was rarely mentioned in statements.309 For this chapter, this means that the best case for a human rights obligation to criminalize aggression can be made based on the human right to life, as long as the human right to peace has not crystallized. Provided, however, human rights law is applicable.

2.4.4 Territorial Scope of the Obligation to Criminalize Aggression The final problem of inferring an obligation to criminalize aggression from human rights law is the limited territorial scope or applicability of human rights law. The crime of aggression crosses borders and can be committed by strategic leaders who are not present in the victim State. The perpetrators, victims, acts, and consequences of interstate aggression are not necessarily within the same State. States are under a positive “obligation to ensure”310 human rights of individuals “within their jurisdiction”.311 In the words of Article 1 of the ECHR, “[t]he High Contracting Parties 309

See, e.g., the statements of 24 February 2022 by the former U.S. President Jimmy Carter: “The United States and its allies must stand with the people of Ukraine in support of their right to peace, security, and self-determination.”: https://www.cartercenter.org/news/pr/2022/jimmy-carter-statem ent-022422.html. Accessed 15 September 2022. And by the German Foreign Minister Annalena Baerbock: “The aim of this war is to destroy one thing above all—the hope of the people in Ukraine that, after decades without freedom, they would have a right to democracy, a right to peace and a right to a better future without oppression.”, available at https://www.auswaertiges-amt.de/en/new sroom/news/baerbock-ukraine/2513410. Accessed 15 September 2022. 310 Or “obligation to secure”, see Article 1 of the ECHR. 311 Which seems to be mainly understood territorially and thereby leads to a territorially restricted obligation to prosecute, see Cryer 2010, p. 104 who also refers to the territorial limits of human rights law to explain why the duty to prosecute only covers human rights violations that relate to

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shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”312 Article 2 of the ICCPR is framed differently and states that “[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…”.313 This raises the question of how to interpret these provisions on the geographical applicability of human rights law, which may include an obligation to criminalize the killings resulting from acts of aggression. As a caveat, the notion of “jurisdiction” under human rights treaties is not the same as the concept of jurisdiction under international law as used in Chap. 7.314

2.4.4.1

“Within Their Jurisdiction” Under the ECHR: The Spatial and Personal Model of Extraterritorial Jurisdiction

According to the European Court of Human Rights, “jurisdiction” in the sense of Article 1 of the ECHR is “primarily territorial”,315 even if the ECHR did not opt for the more specific language of “within its territory” as used in the ICCPR.316 Under the jurisprudence of the European Court of Human Rights, there are nonetheless some accepted exceptions.317 Acts performed, or effects produced, outside the territory are only “within the jurisdiction” of a State in case of “effective control over an area” persons either in their territory, subject to its jurisdiction or under their control; see also Tomuschat 2002, p. 326 who limits the duty to punish under human rights law to acts and events that have occurred under the territorial jurisdiction of the State. 312 Emphasis added by the author. On the interpretation of Article 1 of the ECHR, see Schabas 2015a, pp. 84 et seq. 313 Emphasis added by the author. On the interpretation of Article 2(1) of the ICCPR and the question of whether “within its territory” and “subject to its jurisdiction” is understood conjunctively or disjunctively, see Kälin and Künzli 2019, pp. 125 et seq.; King 2009, p. 523; Taylor 2020, pp. 58 et seq.; Wenzel 2008, para 4. 314 In other words, only because a State has a right under international law to exercise criminal jurisdiction does not mean that it is under a corresponding obligation under human right treaties. For details, see Milanovic 2011, pp. 40 et seq., who also notes that this is a common misunderstanding caused by the decision of the European Court of Human Rights in Bankovi´c. 315 See ECtHR, Soering v. United Kingdom, Judgment, 7 July 1989, Application No. 14038/88, para 86; ECtHR, Bankovi´c and others v. Belgium and others, Decision, 12 December 2001, Application No. 52207/99, para 59; ECtHR, Al-Skeini and others v. the UK, Judgment, 7 July 2011, Application No. 55721/07, para 131; ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, para 131. 316 See in comparison ICCPR, Article 2: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...” 317 ECtHR, Bankovi´ c and others v. Belgium and others, Decision, 12 December 2001, Application No. 52207/99, para 67; ECtHR, Al-Skeini and others v. the UK, Judgment, 7 July 2011, Application No. 55721/07, para 131; ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, paras 131 et seq. For an overview over the extraterritorial application of international human rights law, including the ECHR, see Besson 2012; Milanovic 2011; de Schutter 2018, pp. 147 et seq.

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(spatial model of jurisdiction)318 or where a State agent has “control and authority over an individual” (personal model of jurisdiction).319 The mere capacity of a State to kill persons abroad by its military by missiles or bombs, in contrast, does not bring them “within the jurisdiction”.320 This, however, seems to be a typical aggression situation.321 This restrictive approach was adopted by the European Court of Human Rights in the Bankovi´c case.322 It held that the States which had participated in the NATO bombing of the Serbian Radio-Television headquarters in Belgrade, causing the killings outside their own territory, did not fail to comply with their obligation to secure human rights “within their jurisdiction”. The Court found that it does not suffice that a person is “adversely affected by an act imputable to a Contracting State” or that the latter has limited airspace control.323 It thereby rejected a “causeand-effect” notion of jurisdiction.324 Similarly, the Court recently held in Georgia v. Russia (II)325 that “in the event of military operations—including, for example, armed attacks, bombing or shelling—carried out during an international armed conflict one cannot generally speak of ‘effective control’ over an area.”326 If a State cannot violate its less onerous negative obligation to abstain from human rights violations whenever it kills individuals in violation of ius ad bellum in areas not (yet) under its “effective control”, it seems that it also cannot violate its positive obligation to criminalize killings that result in typical aggression situations.327 Irrespective of a possible inclusion of ius ad bellum considerations in the interpretation of the right to

318

ECtHR, Loizidou v. Turkey, Judgment, 23 March 1995, Application No. 15218/89, para 62; ECtHR, Bankovi´c and others v. Belgium and others, Decision, 12 December 2001, Application No. 52207/99, paras 70 et seq.; ECtHR, Al-Skeini and others v. the UK, Judgment, 7 July 2011, Application No. 55721/07, para 138; ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, paras 138 et seq. On the spatial model, see Milanovic 2011, pp. 127 et seq. 319 ECtHR, Al-Skeini and others v. the UK, Judgment, 7 July 2011, Application No. 55721/07, para 137; ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, paras 133 et seq. On the personal model, see Milanovic 2011, pp. 173 et seq. 320 Krieger 2002, p. 672; Milanovic 2012; Milanovic 2011, p. 123; Tomuschat 2014, pp. 126 et seq. 321 See, e.g., Article 8bis(2)(b) of the ICC Statute: “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State”. 322 ECtHR, Bankovi´ c and others v. Belgium and others, Decision, 12 December 2001, Application No. 52207/99. 323 Ibid., paras 74 et seq. 324 As proposed by the applicants, see ibid., paras 75. 325 On the facts of the case, see ibid., paras 32 et seq. 326 Given that the “very reality of armed confrontation and fighting between enemy military forces seeking to establish control over an area in a context of chaos means that there is no control over an area”, see ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, para 126. The realities of such an active phase of hostilities “also excludes any form of ‘State agent authority and control’ over individuals”, see ibid., para 137. 327 Under human rights law, negative obligations usually have a broader applicability than positive obligations.

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life, States are thus not under an obligation under the ECHR to criminalize aggression to cover situations in which their own State agents commit the crime. For the reversed situation, where the killings of individuals occur in the territory of a State but result from the crime of aggression committed by foreign State agents from abroad, the language of Article 1 of the ECHR does not seem to preclude an obligation to criminalize. It requires States Parties to “secure to everyone within their jurisdiction” the conventional rights. It is not bothered by the source of the violating act, but only by the location of the victim of the human rights violations.328 Even if States have limited possibilities to influence activities by foreign State actors that originate from areas outside their effective control, the obligation to protect persons within their own territory against crimes of aggression by foreign State agents, especially if it only consists in the creation of a legislative act, does not impose a disproportionate burden on States.329

2.4.4.2

“Within Its Territory and Subject to Its Jurisdiction” Under the ICCPR: The “Impact” Model of Extraterritorial Jurisdiction

Article 2 of the ICCPR provides for the geographical applicability that each State Party shall provide human rights to all individuals “within its territory and subject to its jurisdiction”.330 Despite the use of “and”, the UN Human Rights Committee331 and the International Court of Justice332 understand these conditions to be disjunctive.333 Thus, an extraterritorial applicability of the ICCPR is assumed. Regarding the right to life, the extraterritorial applicability of the ICCPR goes beyond the ECHR’s spatial model (“effective control over an area”), as well as its personal model of extraterritorial jurisdiction (“control and authority over an individual”). As recently clarified by the UN Human Rights Committee, the obligation of a State to respect and ensure the right to life also extends to persons if their right to life is “impacted in a direct and reasonably foreseeable manner” by the State’s

328

Altwicker seems to concur with this conclusion when he contends that a State has a “transnational human rights obligation to protect persons within its own territory against harmful effects resulting from transnational activities by foreign actors outside its effective control”, see Altwicker 2018, p. 604. 329 For including considerations, such as whether obligations are onerous or whether they are only prophylactic to ensure the compliance of negative obligations, see Milanovic 2011, pp. 216 et seq. 330 Emphasis added by the author. 331 See UN Human Rights Committee 2004, para 10. 332 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, paras 107–11. 333 On the interpretation of Article 2(1) of the ICCPR, see Buergenthal 1981; Kälin and Künzli 2019, pp. 125 et seq.; King 2009, p. 523; Meron 1995; Milanovic 2011, pp. 222 et seq.; Taylor 2020, pp. 58 et seq.

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activities.334 Aggression can be planned and prepared by strategic leaders from afar and executed in foreign territory not (yet) under “effective control” of the aggressor State. An example is conducting Bankovi´c-like aerial bombardments. The ICCPR’s “impact” model avoids the absurdity of the ECHR regime that results from requiring first the effective control over the aggressed State’s territory before protecting the preeminent right to life. The Human Rights Committee’s extension of the jurisdictional scope of the ICCPR to acts with a “direct and reasonably foreseeable impact” on the right to life is ultimately coherent with its acknowledgment of the human rights relevance of aggression in the same General Comment no. 36.335 Aggression mostly results in killings prior to or even in the total absence of “effective control” over the victim State’s territory. Based on the ICCPR’s “impact” model, one may argue that States are under an obligation to criminalize aggression to cover situations in which killings result in a direct and foreseeable manner from crimes of aggression committed by their own State agents. For the reversed situation, where the killings of individuals occur in the territory of a State but result from a crime of aggression committed by foreign State agents from abroad, Article 2 of the ICCPR does not preclude an obligation to criminalize. The fact that the violating act originates from abroad does not seem to matter too much under Article 2 of the ICCPR. The individuals that are killed as a result of the crime of aggression initiated from abroad are “within the territory” of the victim State.

2.4.5 Conclusion to International Human Rights Law To conclude, the inference of an obligation to criminalize aggression from the obligation to ensure human rights is normally closed off at a too early stage. This is due to the alleged indifference of human rights law towards ius ad bellum violations. It is further challenged by the fact that the crime of aggression can be planned and prepared by strategic leaders from afar and executed without necessarily affecting individuals that are “within the jurisdiction” of a State. Put differently, the territorial scope of the “obligation to ensure” human rights challenges the inference. However, neither the language of the provisions on the right to life nor the effet utile of the ECHR and ICCPR to protect human rights prevents the perception that killings which conflict with the ius ad bellum are a violation of the supreme right to life. The human rights relevance of aggression, albeit not explicitly the obligation to criminalize it, has recently been affirmed by the UN Human Rights Committee 334

UN Human Rights Committee 2018, para 63. See also Darcy 2021, p. 127. But see the criticism raised against this interpretation, e.g., by the Netherlands in “Comments of the Netherlands to the Draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on Right to Life”, para 29: “…the mere fact that a bullet hits an individual, missile, or rocket fired by armed forces does not bring that individual within the power or effective control of the State party”. 335 See UN Human Rights Committee 2018, para 22.

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for the ICCPR but awaits validation by the European Court of Human Rights for the ECHR. The emerging human right to peace would not only protect individuals from killings but also from any endangerment of their human rights by breaches of the peace. However, it not yet listed in the ECHR and the ICCPR and remains an unsettled source of an obligation to criminalize aggression. The obligation to criminalize the transboundary crime of aggression additionally depends on the interpretation of the obligation of States to ensure the right to life “within their jurisdiction”. Under the ECHR, this is understood to be primarily territorial and excludes, in line with the Bankovi´c jurisprudence,336 typical aggression situations of interstate use of armed force where killings result from military operations in foreign territory not (yet) under the State’s “effective control”. The ICCPR, in contrast, is understood according to the Human Rights Committee as extending the obligation to ensure the right to life to situations where the right to life is “impacted in a direct and reasonably foreseeable manner”. While States seem to be under an ICCPR obligation, they are not yet337 under an ECHR obligation to criminalize aggression to cover situations where killings abroad result from their own act of aggression. Both the ECHR and the ICCPR, however, seem to oblige States to criminalize aggression to cover the reversed situation, where the killings occur in their own territory but result from the act of aggression of another State. The obligation to ensure human rights of individuals “within their jurisdiction” is not necessarily concerned with the location of the violating act. Overall, however, the claimed human rights obligation to criminalize aggression is, if at all, the outcome of a challenging interpretative process of the ICCPR and the ECHR. The degree of precision of the treaty provisions which set out obligations for States Parties and contain an interpretative gateway for ius ad bellum considerations is relatively low. Admittedly, the interpretative step from an obligation “to ensure” to a general obligation “to criminalize” can rely on authoritative interpretations by the European Court of Human Rights and by the UN Human Rights Committee. In contrast, only the latter has accepted for the ICCPR in its General Comment no. 36 the integration of ius ad bellum. This was based on the interpretation of “arbitrary” deprivations of life, as well as the territorial applicability of human rights obligations on the basis of an “impact” model. The General Comment no. 36, however, was criticized by several States. It thus seems that the human rights obligation to criminalize aggression, as inferred in this chapter from the human right to life, is softer given that

336

And as affirmed in ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08. 337 In the recent judgment in Georgia v. Russia (II), Judge Chanturia lodged a partially dissenting opinion in which he criticizes the majority’s confirmation of the “clearly outdated” and “lifeless” understanding of extraterritorial jurisdiction adopted in the Bankovi´c case. He did so not only in reference to the UN Human Rights Committee’s “impact” model but also by drawing a comparative-law parallel to the Inter-American human rights regime which is equally able to cover targeting situations without meeting the “effective control” threshold. See ECtHR, Georgia v. Russia (II), Judgment, 21 January 2021, Application No. 38263/08, partially dissenting opinion of Judge Chanturia, paras 13 et seq.

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its existence and content are debatable, and its violation therefore not accompanied by serious reputational costs.

2.5 Customary International Law Another potential source of an obligation to criminalize aggression is customary international law. This may have been “recalled” in the Preamble of the ICC Statute.338 A customary obligation would have the advantage of binding all States, other than persistent objectors.339 Its disadvantage is that controversies about its existence lower the reputational costs of non-compliance.340 If no external authority gives guidance on how to interpret existing State practice, customary international law remains soft in terms of precision and enforcement.341 States can simply interpret the collection of State practice by themselves. This is why the “more precise formulation and systematization of rules of international law”342 by the International Law Commission or other international instances is particularly valuable.

2.5.1 The Classical Inductive Approach: State Practice and Opinio Iuris The establishment of a rule under customary international law follows in principle the “inductive”343 approach. It requires the identification of two elements: general practice and opinio iuris.344 For the question of whether States are obliged to criminalize aggression, relevant State practice can, inter alia, stem from domestic criminal provisions on aggression if they were enacted with a sense of legal obligation.345 This second element, opinio iuris, can be established by public statements made on behalf of States, official publications, government legal opinions or conduct in connection 338

See ICC Statute, preambular para 6. Cryer 2010, p. 106. 340 See Guzman 2002, p. 1863. 341 On the importance of the delegation of authority to a third party to monitor the implementation, to interpret and enforce it for the “hardness” of law, see Shaffer and Pollack 2013, p. 30. 342 For the mandate of the International Law Commission (progressive development and codification), see ILC Statute, Article 1. 343 Commentary to Draft Conclusion 2 in International Law Commission 2018a, para 5; Bleckmann 1977, p. 505; Roberts 2001, p. 758; Talmon 2015, p. 421. 344 See ICJ Statute, Article 38(1)(b): “general practice accepted as law”; ICJ, Case Concerning the Continental Shelf (Libya v Malta), Judgment, 3 June 1985, ICJ Reports 1985, p. 13, para 27; ICJ, Jurisdictional Immunities of the State (Germany v Italy), Judgment, 3 February 2012, ICJ Reports 2012, p. 99, para 55; Draft Conclusion 2 in International Law Commission 2018a. 345 Draft Conclusion 9 in International Law Commission 2018a. See also O. Dörr, in Epping and Heintschel von Heinegg 2018, § 19 para 14. 339

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with adopted international resolutions.346 Judicial decisions and teachings of the most highly qualified publicists, including the documents of the International Law Commission, may serve as a subsidiary means for identifying customary international law.347

2.5.2 The Relationship Between the Obligation to Criminalize, the Obligation to Exercise Jurisdiction and the Obligation to Prosecute (or Extradite) The analysis of the customary obligation to criminalize aggression can build on existing State practice and studies on related obligations in the field of criminal law, such as the obligation to exercise jurisdiction and the obligation to prosecute (or extradite).348 Due to the nullum crimen, nulla poena sine lege principle,349 these obligations are interrelated. There can be no crime, no prosecution and no punishment without a prior criminal norm. However, the decision on how to discharge the obligation to prosecute, including what criminal norm to apply, rests with the States which may theoretically resort to ordinary offense definitions.350 As discussed in Chap. 4, the situation for the crime of aggression is different. Ordinary criminal offenses under domestic law are mostly unable to adequately reflect the core wrong of the crime of aggression.351 They would overemphasize the effects of the use of armed force on individual interests, although their protection is less straightforward when integrated into the broader context of manifestly illegal inter-state use of armed force. The lack of alternative ordinary criminal offenses, combined with the necessity of prior criminalization due to the nullum crimen, nulla poena sine lege principle, is the reason why an obligation to prosecute aggression logically implies an obligation to criminalize aggression beforehand. This can be contrasted to the obligation to prosecute genocide, crimes against humanity, and most war crimes. For the same reasons, an obligation to exercise jurisdiction over the crime of aggression implies an obligation to criminalize. “Jurisdiction” can refer to the “jurisdiction to prescribe” or “jurisdiction to adjudicate”.352 Hence, the obligation to

346

Draft Conclusion 10(2) in International Law Commission 2018a. Draft Conclusions 13 and 14 in International Law Commission 2018a. See also ICJ Statute, Article 38(1)(d). 348 For a distinction between the duty to criminalize, the duty to establish a criminal-law machinery and the duty to conduct criminal proceedings, see Seibert-Fohr 2009, pp. 111 et seq. 349 On this principle, see Kreß 2010; Krey 1983; van der Wilt 2015. 350 Werle and Jeßberger 2020, para 89. 351 See Chap. 4, Sects. 4.2 and 4.3. 352 As well as to the “jurisdiction to enforce”. For the terminology, see, e.g., Jeßberger 2011, pp. 9 et seq. See also Chap. 7, Sect. 7.1.1. 347

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exercise the former is synonymous with the obligation to criminalize. The obligation to exercise the latter is equivalent to the obligation to prosecute. State practice and studies on the customary obligation to extradite or prosecute (aut dedere aut iudicare) are also helpful for assessing the existence of a customary obligation to criminalize aggression. An obligation to extradite or prosecute is usually set out in suppression conventions.353 It is addressed to the custodial State, which is obliged to either prosecute the person present on its territory or extradite the suspect to another State.354 National measures to criminalize the relevant crimes and to establish jurisdiction are “a logical prior step” to the implementation of the “prosecution” limb.355 Without any legislative action, States would be unable to fulfil the iudicare limb which is why an obligation to criminalize aggression could be inferred from a customary obligation to extradite or prosecute.356 Due to the described close relationship established by the nullum crimen, nulla poena sine lege principle, the following assessment can build on the existing discussions of customary obligations to prosecute, to establish jurisdiction, and to extradite or prosecute. The obligation to criminalize aggression seems to be an inherent part of these obligations.

2.5.3 Limited Aggression-Specific State Practice Supported by Opinio Iuris on the Obligation to Criminalize When applying the inductive approach to the identification of customary international law, aggression-specific State practice supported by opinio iuris on the obligation to criminalize is difficult to find. It does not necessarily fulfill the requirement of being “general” in the sense of “sufficiently widespread and representative, as well as consistent”.357 Among the instances potentially relevant to the identification of a customary rule are: the legislative State practice in the form of domestic provisions criminalizing aggression, the Preamble of the ICC Statute, human rights 353

See, e.g., Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987 (Torture Convention). 354 Kittichaisaree 2018, p. 3. 355 See International Law Commission 2014b, paras 17 et seq.: “The effective fulfilment of the obligation to extradite or prosecute requires undertaking necessary national measures to criminalize the relevant offences, establishing jurisdiction over the offences and the person present in the territory of the State.” 356 See Commentary to Article 8 in International Law Commission 1996, para 6 whereby States that fail to establish the necessary jurisdiction “would be forced to accept any request received for extradition which would be contrary to the alternative nature of the obligation to extradite or prosecute”. Similarly, Geneuss 2013, p. 93 fn. 287 whereby the principle aut dedere aut iudicare indirectly affects the legislative level too as States are obliged to adapt their criminal law to be able to prosecute; Heller 2019, p. 534. 357 See Draft Conclusion 8 in International Law Commission 2018a.

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law, resolutions of international institutions and the work of the International Law Commission. The approximately 40358 instances of legislative practice prior to359 and after360 the Kampala Conference do not unequivocally suggest that States criminalized aggression with a sense of legal obligation.361 Estonia offers the rare example of explicit opinio iuris. In the accompanying materials to its implementing act, it states that the inclusion of the crime of aggression reflects international obligations, binding upon Estonia stemming from customary and international treaty law.362 For the majority of criminal provisions that lack a similar clarification, the mere end product may only indicate that States believed they had a right to criminalize aggression,363 or result from policy considerations.364 It cannot be presumed that these States criminalized aggression with a sense of being obliged. The legislative inaction of approximately 150 States could even prompt the conclusion that States do not regard themselves as being under a customary obligation to criminalize aggression.365 Arguing otherwise would mean that most States are in constant breach of their customary obligation.366 From an international relations perspective, however, the legislative inaction is not a strong indication that a customary obligation does not exist. Such a conclusion neglects the low reputational cost for violating an obligation whose existence is ambiguous.367 Hence, without respective State pronouncements, the legislative inaction of most States does not suggest the absence of a customary obligation to criminalize aggression either. 358

See also Reisinger Coracini 2017, p. 1038. Approximately 25 countries had statutory provisions relating to aggression as a crime under international law, see Reisinger Coracini 2009, p. 734. 360 16 states have implemented the crime of aggression after Kampala. These are as of March 2022: Afghanistan, Austria, Croatia, Cyprus, the Czech Republic, Ecuador, Estonia, Finland, Georgia, Germany, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. Some of them are also among the post-World-War II codifiers. 361 On the general question of whether opinio iuris can be inferred from State practice, see Thirlway 2019, p. 82. For a stricter approach, see Draft Conclusion 3 in International Law Commission 2018a, para 7. 362 Parmas 2017, p. 897. 363 See for a similar conclusion with respect to the pre-Kampala legislation Reisinger Coracini 2009, p. 1056. For the same reasoning of Judge Abraham when discussing the 51 instances of state practice on universal jurisdiction, see ICJ, Belgium v Senegal, Judgment, 20 July 2012, dissenting opinion of Judge Abraham, ICJ Reports 2012, p. 422 para 38. 364 In Kazakhstan, Tajikistan and Uzbekistan, for example, policy considerations may have been influential as the provisions on the crime of aggression were enacted a few years after independence. See Reisinger Coracini 2017, p. 1056. 365 For this reasoning in light of “the relatively small number” of States with domestic provisions on crimes against humanity, see International Law Commission 2016, para 18. But see the criticism raised by Tladi who contends that “104 pieces of legislation is quite an impressive quantity of State practice”, see International Law Commission 2018c, para 117. 366 Similarly on the customary obligation to prosecute international crimes in general Cryer et al. 2019, p. 78. 367 Guzman 2002, p. 1863. 359

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There is no international treaty specifically covering the suppression of the crime of aggression, which provides for an obligation to prosecute (or extradite), an obligation to exercise jurisdiction, or an obligation to criminalize.368 The Preamble of the ICC Statute, however, could indicate the existence of a customary obligation to criminalize aggression. By using the verb “recalling” in para 6, the Preamble suggests that over 120 States Parties believed that a “duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” existed under international law prior to the Statute’s adoption.369 Even if the Preamble is not a source of an implied obligation to criminalize,370 it is at least evidence of the existence of obligations outside of the Statute. This includes an “obligation to criminalize” if ordinary crimes cannot reflect the core wrong of the international crime. Although the crime of aggression was undefined at the time the ICC Statute was adopted, it was still listed as an ICC Statute crime since the Rome Conference. Its nature as an “international crime” is accepted since Nuremberg. This is why the Preamble could express the view of over 120 States that a customary obligation to criminalize aggression exists. The developments under human rights law concerning the right to life371 potentially support the assumption of an obligation to criminalize aggression that results in killings. This depends on whether this treaty obligation is also an expression of customary law. Moreover, the UN General Assembly’s Declaration on the Right to Peace372 could arguably be perceived as a soft law document expressing the view of the supporting States that there is a customary right to peace. This could be accompanied by a corresponding duty to take implementing measures such as criminalizing aggression.373 Historic examples of UN resolutions, normally mentioned to demonstrate the existence of a customary obligation to prosecute other international crimes, do not deal with the crime of aggression.374 The UN General Assembly adopted resolutions in the 1970s which are relevant to the possibility of an obligation to prosecute, but only deal with war crimes and crimes against humanity.375 Similarly, the UN Security 368

International treaties can in principle give rise to or codify customary obligations. On the relation of treaties to custom, see Crawford 2019, pp. 30 et seq. See also ICJ, North Sea Continental Shelf Cases (Germany v Denmark) Judgment, 20 February 1969, ICJ Reports 1969, p. 3, paras 43–44. 369 Benzing 2003, p. 596; Heller 2017, p. 398; Kleffner 2009b, p. 242; Nouwen 2013, p. 38. 370 See Sect. 2.3.2 above. 371 See Sect. 2.4.3.1 above. 372 See UN General Assembly 2016a. 373 For the objections to such an interpretation of the declaration, see Sect. 2.4.3.2 above. 374 For a collection of these resolutions by the UN General Assembly and by the UN Security Council, see van Steenberghe 2011, pp. 1100 et seq. On the resolutions of the UN General Assembly which may point to the existence of a customary obligation to prosecute international crimes, see Cryer 2010, pp. 105 et seq. 375 But they acknowledge the link to the crime of aggression by stating that war crimes and crimes against humanity are committed “as a result of aggressive wars” or refer to Resolution 2712 which contains this language, see UN General Assembly 1970, operative para 3; UN General Assembly 1971, operative para 1; UN General Assembly 1973, operative para 5.

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Council adopted resolutions in the 2000s urging States to prosecute those responsible for genocide, crimes against humanity, war crimes and other serious crimes.376 As of March 2022, the resolutions adopted by the UN General Assembly in response to the Russian aggression against Ukraine do not allude to an obligation of States to prosecute the crimes committed in this conflict.377 By urging States to set up an ad hoc tribunal to prosecute the crime aggression allegedly committed by the Russian leadership, the Parliamentary Assembly of the Council of Europe does not necessarily imply an obligation to prosecute either.378 The International Law Commission379 has dealt with the obligation to prosecute (or extradite) on several occasions, namely in its Draft Code of Crimes Against Peace and Security of Mankind of 1996,380 in its work on the obligation to extradite or prosecute, and in its work on ius cogens. Overall, the output varies. Sometimes the Commission has rejected such an obligation with respect to the crime of aggression.381 The other times it dealt with the obligation in a rather ambiguous manner,382 in a promising Kampala-sensitive fashion383 or in a general ius cogens-based way.384 Article 9 of the 1996 Draft Code of Crimes is the most prominent provision of the International Law Commission which suggests the absence of a customary international law obligation to criminalize aggression. Regarding crimes like genocide, crimes against humanity, and war crimes,385 it obliges States to extradite the suspect to another State or to prosecute that individual in their national court. The omission of the crime of aggression,386 however, can be seen as a logical consequence, or even consequential error, of the Draft Code’s controversial limitation of domestic jurisdiction to the aggressor State.387 If domestic jurisdiction is erroneously limited to one single State, there is no second State which could prosecute and potentially request

376

For an overview of these resolutions, see van Steenberghe 2011, p. 1101. See UN General Assembly 2022a; UN General Assembly 2022b. 378 See Parliamentary Assembly of the Council of Europe 2022. 379 Its work serves as a subsidiary means for determining international law. See also ICJ Statute, Article 38(1). See also the remark on the 1996 Draft Code by ICTY (TC), Furundžija, Judgment, 10 December 1998, para 227. 380 International Law Commission 1996. Subsequently referred to as “1996 Draft Code of Crimes”. 381 International Law Commission 1996; International Law Commission 2014a. 382 International Law Commission 2011. 383 Informal Paper of the Chairman Kittichaisaree of the Working Group on the obligation to extradite or prosecute in 2013. See the extracts from his informal working paper of 2013 in Kittichaisaree 2018, p. 60. 384 International Law Commission 2018c. 385 International Law Commission 1996, Article 9. 386 Ibid. 387 International Law Commission 1996, Article 8 which recommended to establish “exclusive jurisdiction of an international criminal court for the crime of aggression with the singular exception of the national jurisdiction of the State which has committed aggression over its own nationals.” See Commentary to Article 8 in International Law Commission 1996, para 13. 377

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extradition. No State can thus be in a situation “to extradite or prosecute”.388 Although the limitation to aggressor jurisdiction, has since been criticized,389 Article 9 of the 1996 Draft Code of Crimes still exists as the output of a group of experts which refers to this article in its subsequent work to deny the existence of an aggression-specific obligation. In 2004, the International Law Commission reconsidered the question and began its work on “The obligation to extradite or prosecute (aut dedere aut judicare)” under the direction of Special Rapporteur Galicki.390 Draft Article 4 of his fourth report of 2011 is written in a rather ambiguous fashion.391 It is open enough to include the crime of aggression due to its link to ius cogens.392 However, aggression is not mentioned in the non-exhaustive393 list of norms from which an obligation to extradite or prosecute can derive.394 Galicki’s work somehow softens the previous exclusion of the crime of aggression in the 1996 Draft Code of Crimes from the obligation to extradite or prosecute. Nonetheless, it does not explicitly include it either. The work on the obligation to extradite or prosecute has never been completed.395 In 2012, the International Law Commission established an open-ended Working Group on the obligation to extradite or prosecute under the Chairship of Kittichaisaree who raised new hope “to update the 1996 Draft Code in light of developments since 1996”.396 It intended to consider “whether more could be done in term of international cooperation to extradite or prosecute the perpetrator of aggression in the light of the 2010 Kampala Amendment to the ICC Statute that incorporates the crime of 388

The International Law Commission explains that Draft Article 9 does not address the so-called “third alternative”, namely the transfer of the alleged offender to an international criminal court, but only the extradition to another state, see Commentary to Article 9 in International Law Commission 1996, para 8. 389 See Reisinger Coracini 2009, p. 731; Sayapin 2014, pp. 242 et seq.; Strapatsas 2010, pp. 452 et seq.; Wrange 2017, p. 714. 390 On the International Law Commission’s Work on the obligation to extradite and prosecute, see in detail Kittichaisaree 2018, pp. 17 et seq. See also the analytical guide: https://legal.un.org/ilc/ guide/7_6.shtml. Accessed 15 September 2022. 391 See, e.g., the tautological statement without taking stance on the current state of customary international law in Draft Article 4(1) in International Law Commission 2011, p. 202: “Each State is obliged either to extradite or to prosecute an alleged offender if such an obligation is deriving from the customary norm of international law.” 392 See Draft Article 4(3) in International Law Commission 2011, p. 202: “The obligation to extradite or prosecute shall derive from the peremptory norm of general international law accepted and recognized by the international community of States (jus cogens), either in the form of international treaty or international custom, criminalizing any one of acts listed in para 2.” This may open the door to include aggression, one of the first norms generally mentioned as having a ius cogens character. 393 Galicki clarified in his report that the list of crimes seems to “be still open and subject to further consideration and discussion”, see International Law Commission 2011, para 96. 394 International Law Commission 2011, p. 203: “Such an obligation may derive, in particular, from customary norms of international law concerning [serious violations of international humanitarian law, genocide, crimes against humanity and war crimes].” 395 When Galicki left the International Law Commission in 2011, no special rapporteur was appointed to replace him. 396 Kittichaisaree 2018, p. 91.

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aggression as a crime within the ICC’s jurisdiction”.397 Although Kittichaisaree suggested describing the material scope of the obligation to extradite or prosecute in a way that includes the crime of aggression,398 the working group concluded in 2014 without resolving the matter. In a footnote, it reiterated what the International Law Commission assumed to be right eighteen years before: the essence of Draft Article 9 of the 1996 Draft Code of Crimes, which does not include the crime of aggression in the obligation to extradite or prosecute.399 With the inclusion of the topic “ius cogens” in its program of work in 2015, the International Law Commission had a new chance to update its position. Convinced that there is “widespread practice…of States exercising criminal jurisdiction of acts the prohibition of which constitutes a jus cogens norm”, Tladi initially proposed Draft Conclusion 22. This stated that “States have a duty to exercise jurisdiction over offences prohibited by peremptory norms of international law (jus cogens) where the offences are committed by the nationals of that State or on the territory under its jurisdiction. Paragraph 1 does not preclude the establishment of jurisdiction on any other ground as permitted under its national law.”400 Bearing in mind that the list of norms that the International Law Commission identified as having the status of ius cogens contains the prohibition of aggression, Draft Conclusion 22, if adopted, could have been read as obliging the territorial State and the national State to prosecute the crime of aggression.401 Ultimately, the International Law Commission did not adopt the draft conclusion.402 It refrained again from taking a position on the existence of a customary obligation to prosecute crimes under international law. The impression caused by Article 9 of the 1996 Draft Code of Crimes, which excludes the crime of aggression from the obligation to extradite or prosecute, was left untouched. To summarize, there is currently not enough aggressionspecific material to assume a customary obligation to criminalize aggression. The approximately 40403 mostly uncommented instances of legislative State practice are rather an expression of a mere right to criminalize aggression. Preambular paragraph 6 of the ICC Statute could suggest that over 120 States Parties assumed that an obligation to exercise jurisdiction over international crimes, including the “supreme international crime”,404 existed under international law prior to the Statute’s adoption. Moreover, the human right to life and the human right to peace, if part of customary international law, could support the assumption 397

See the extracts from his informal working paper of 2013 in ibid., p. 60. Ibid., p. 91. 399 International Law Commission 2014c, fn. 431. 400 See International Law Commission 2018c, para 132. 401 For this conclusion, it suffices that the underlying prohibition constitutes a ius cogens norm. The language “prohibition of aggression” instead of “prohibition of the crime of aggression” does not lead to a different conclusion. The annex also uses the underlying “basic rules of international humanitarian law” instead of declaring “war crimes” as norms of ius cogens. 402 On the decision to replace the original draft conclusion, see International Law Commission 2019b, pp. 5 et seq. 403 Reisinger Coracini 2017, p. 1038. 404 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. 398

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of a customary obligation to criminalize aggression. The general language of the preambular paragraph, the various interpretative steps for inferring an obligation to criminalize aggression from the human right to life and the controversies around the human right to peace, however, make it difficult to present a strong case in favor of a customary obligation to criminalize aggression. The ambivalent work of the International Law Commission does not point to the existence of a customary obligation to criminalize aggression either.405

2.5.4 No General Customary Obligation to Criminalize “Crimes Under International Law” Under Domestic Law Instead of looking for instances that deal with the crime of aggression in particular, States might be under a general customary obligation to criminalize under domestic law “crimes under international law”, without making a distinction between the crimes or the States exercising jurisdiction. There is, however, “no single and unified regime for the national suppression of core crimes”.406 Existing literature on the obligation to prosecute crimes under international law gives a nuanced answer. Scholars distinguish between the territorial State and other States.407 They also assess the existence of State practice for each crime individually.408 The distinction between States that exercise jurisdiction is consistent with the common distinction between the principles of jurisdiction, such as territorial jurisdiction, nationality jurisdiction, passive personality jurisdiction or universal jurisdiction.409 These principles give rise to permissive rules to exercise jurisdiction. If the question on the permissive exercise of jurisdiction depends on which State is exercising jurisdiction, it would be difficult to assess the mandatory exercise of jurisdiction without making a distinction.410 It is most defensible to assume that the territorial State and the national State of the perpetrator are under a customary obligation to prosecute crimes under international law.411 The exercise of universal jurisdiction, in contrast, is mostly perceived as a right, not an obligation.412 405

For the same conclusion, see Wrange 2017, pp. 720 et seq. Kleffner 2009b, p. 22. 407 See, e.g., Kittichaisaree 2018, pp. 163 et seq.; Seibert-Fohr 2009, p. 278; Werle and Jeßberger 2020, paras 277 et seq. 408 See, e.g., Kleffner 2003, pp. 9 et seq.; Seibert-Fohr 2009, pp. 259 et seq.; Tams 2002, pp. 1175 et seq.; Tomuschat 2002. 409 For more details, see Chap. 7. 410 On the term permissive and mandatory jurisdiction: Tomuschat 2002, pp. 327 et seq. 411 See Cryer et al. 2019, p. 78; Robinson 2003, p. 491; International Law Commission 2018c who suggested Draft Conclusion 22 which contains an obligation to exercise jurisdiction for the territorial State and the national State. 412 Cryer et al. 2019, p. 57; Werle and Jeßberger 2020, paras 280 et seq., whereby mandatory universal jurisdiction has been recognized only for war crimes in international armed conflicts. 406

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The claimed customary obligation for the territorial State and the national State of the perpetrator to prosecute crimes under international law, however, is mostly based on State practice with respect to other core crimes. A customary obligation to prosecute other core crimes can be discharged by resorting to existing ordinary criminal offenses. This is why the obligation does not automatically include an obligation to criminalize genocide, crimes against humanity or war crimes.413 The core wrong of the crime of aggression, in contrast, cannot be covered by resorting to ordinary criminal offenses.414 Extending the customary obligation to prosecute to the crime of aggression and automatically inferring an obligation to criminalize aggression due to the lacking possibility to resort to ordinary criminal law would privilege aggression in comparison to other core crimes. However, it was these other core crimes which provided the State practice for the obligation to prosecute in the first place.

2.5.5 Conclusion to Customary International Law To conclude, there is neither enough aggression-specific material to assume a customary obligation to criminalize aggression nor a general customary obligation for all States to criminalize “crimes under international law”. The aggression-specific material415 is too limited and vague to make a strong case for a customary obligation to criminalize aggression. A general customary obligation to prosecute crimes under international law arguably exists for the territorial State and the national State. Extending this obligation—mostly based on State practice with respect to genocide, crimes against humanity, and war crimes—to the crime of aggression and simultaneously inferring an obligation to criminalize aggression may be difficult. This obligation can be mostly discharged with respect to other core crimes by resorting to existing ordinary criminal offenses. As discussed in Chaps. 7 and 8, the lack of a large amount of hard State practice does not necessarily preclude the assumption of a rule under customary international law if existing principles clearly point in the direction of a rule.416 In the words of Talmon: “Where a rule of customary international law is logical, because it can be deduced from an existing underlying principle, the burden of proving the rule by way of inductive reasoning is proportionally diminished. In essence, a logical rule requires a smaller pool of State practice and opinio iuris.”417 This so-called 413

Given the possibility of resorting to ordinary crimes, Werle and Jeßberger assert that the territorial State is under a customary obligation to prosecute, but they deny a comprehensive duty to implement international crimes in domestic law. See Werle and Jeßberger 2020, paras 89, 277. 414 See Chap. 4, Sects. 4.2 and 4.3. 415 E.g., the Preamble of the ICC Statute, human rights law, and some more inclusive reports of the International Law Commission. 416 Kreß 2012, p. 251. Similarly, Gärditz 2006, p. 167; Fastenrath 1991, p. 207. 417 Talmon 2015, p. 427. For a concurring view, see Gärditz 2007, pp. 24 et seq. (“Konkrete Ausformungen, für die das staatenpraktische Substrat einen hinreichend aussagekräftigen

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a “principle-based reasoning” (prinzipiengeleitete Argumentation)418 is a form of “deductive” reasoning, going from the general to the specific.419 Although the International Law Commission considers the inductive “two-element” approach as the “basic approach”, it “does not preclude a measure of deduction, as an aid, to be employed with caution, in the application of the two-element approach”.420 To stabilize the few instances of State practice in favor of a customary obligation, it could be argued that such an obligation to prosecute and to criminalize aggression can be deduced from the status of aggression as a ius cogens norm. Instead of integrating the “ius cogens”-based reasoning as a support in the customary international law avenue, however, it is often discussed as a separate approach to the identification of an obligation to prosecute (or extradite).421

2.6 Ius Cogens The final avenue that can give rise to an obligation to criminalize aggression is the one based on ius cogens considerations. Bassiouni was one of the strongest proponents of an obligation to prosecute (or extradite) crimes the prohibition of which amounts to ius cogens. He contended that “recognizing certain international crimes as jus cogens carries with it the duty to prosecute or extradite”.422 Former Special Rapporteur on the obligation to extradite or prosecute Galicki concurred by proposing a draft article which states that “[t]he obligation to extradite or prosecute shall derive from the peremptory norm of general international law accepted and recognized by the international community of States (jus cogens)”.423 The particularity of the ius cogens avenue is the allegation that a crime the prohibition of which is ius cogens “automatically”,424 “by [its] very nature”,425 “in and of itself”426 gives rise to an obligation to prosecute (or extradite).

Befund nicht zulässt, werden durch Rückschlüsse aus Prinzipien eines höheren Abstraktionsgrades…konkretisiert, arrondiert und durch Systembildung als Methode dogmatischer Rechtserkenntnis für den Normanwender verfügbar gemacht.”); Worster 2014, p. 514. 418 Kreß 2002, p. 839; Kreß 2012, p. 251. 419 Talmon 2015, p. 420. 420 See Commentary to Draft Conclusion 2, International Law Commission 2018a, para 5. 421 For a discussion of ius cogens-based reasoning as a separate avenue from the customary international law avenue, see Ambos 2018b, paras 9, 11; Cryer 2010, pp. 105 et seq., 110. 422 Bassiouni 1996, p. 65; Bassiouni and Wise 1995; see also Cassese 2012, p. 167; Goodwin-Gill 1999, p. 220; Orakhelashvili 2006, p. 305. For a contrary view, see Ambos 2018b, para 11; Costelloe 2017, p. 191; Cryer 2010, pp. 110 et seq.; van Steenberghe 2011, 1092; Tomuschat 2002, p. 342. 423 International Law Commission 2011, p. 203. 424 Ambos 2018b, para 11. 425 Goodwin-Gill 1999, p. 220. 426 Kittichaisaree 2018, p. 100.

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If this automatism holds true, and if the crime of aggression is based on a ius cogens norm, one may infer the obligation to criminalize from the ius cogens-based obligation to prosecute (or extradite) aggression.

2.6.1 Definition and Characteristics of a Ius Cogens Norm The term “ius cogens” is central to this avenue. A norm of ius cogens (Latin for “compelling law”), also called a peremptory norm of general international law, is defined in Article 53 of the Vienna Convention on the Law of Treaties (VCLT) as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”427 Norms of ius cogens are said to “reflect and protect fundamental values of the international community”428 and to be “hierarchically superior to other rules of international law”.429

2.6.2 Methodological Difference of the Ius Cogens Avenue in Comparison to the Customary International Law Avenue The ius cogens nature of a norm can be established in two steps.430 First, the norm in question must be a norm of “general international law”,431 meaning it “must have equal force for all members of the international community”.432 This is most obviously the case for customary norms.433 In contrast to the purely inductive “customary international law” avenue, it is not the specific obligation to criminalize which requires a foundation in customary international law. It is the crime of aggression, the underlying prohibition of aggression 427

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980 (VCLT). See also Draft Conclusion 2 in International Law Commission 2019a. 428 See Draft Conclusion 3 in International Law Commission 2019a. See also Bassiouni 1996, p. 69; Kolb 2015, p. 32. 429 See Draft Conclusion 3 in International Law Commission 2019a. See also Orakhelashvili 2006, p. 8. 430 See Shaw 2021, pp. 107 et seq. See also Draft Conclusion 4 in International Law Commission 2019a. See also Cassese 2012, p. 164. 431 Draft Conclusion 4(a) in International Law Commission 2019a. 432 See Commentary to Draft Conclusion 5 in International Law Commission 2019a, para 2. 433 For a general assessment of whether it is contradictory to establish a peremptory norm on the basis of the three recognized sources of law, see Thirlway 2019, p. 176; Orakhelashvili 2006, pp. 104 et seq.; Weatherall 2015, pp. 124 et seq.

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or the prohibition of the use of force which needs a basis in customary international law.434 This naturally broadens the pool of possibly relevant State practice. It then suffices to establish evidence for the peremptory nature of the customary norm. This automatically leads to the obligation to prosecute (or extradite), even if the practice for this specific obligation is limited.435 This second step requires the norm to be accepted and recognized436 by the international community of States as a whole as having a peremptory character.437 The acceptance and recognition by a “very large majority” suffices.438

2.6.3 Aggression as a Crime Based on a Ius Cogens Norm This two-step approach to the identification of ius cogens norms will now be applied to aggression. As to the first step, perceiving aggression as “a norm of general international law” is less problematic irrespective of whether one focuses on the “crime of aggression”, the “underlying prohibition of aggression” or the “prohibition of use of force”. The crime of aggression is a norm of “general international law” in the sense of having “equal force for all members of the international community”. Its customary law status remains unquestionable439 despite controversy about its scope. The customary version of the crime of aggression is primarily shaped by the post-World War II trials against the German and the Japanese leaders.440 It seems as if it has been slightly updated by the definition of the ICC Statute.441 The updates by the ICC Statute definition would be the inclusion of acts of aggression short of war, the rejection of the need for a specific collective intent and a more narrow personal scope

434

This, however, is the reason why the ius cogens avenue to the obligation to prosecute is criticized, see, e.g., Focarelli 2008, p. 446; Kolb 2015, pp. 113 et seq. See, in contrast, the approach taken by Special Rapporteur Tladi, which required sufficient State practice with respect to the specific “duty to exercise domestic jurisdiction over crimes prohibited by peremptory norms of general international law” in Draft Conclusion 22 in International Law Commission 2018c, p. 68. 435 Bassiouni asserted that the categorization of a certain crime as ius cogens carries with it the duty to extradite or prosecute but did not deny that “[e]xisting state practices are also few”, see Bassiouni 1996, pp. 65 et seq., 74. 436 “Accepted” is used in connection with customary international law. See Commentary to Draft Conclusion 5 in International Law Commission 2019a, para 10. 437 See Draft Conclusion 4(b) in International Law Commission 2019a. 438 See Draft Conclusion 7(2) in International Law Commission 2019a. In the same vein, Geneuss 2013, p. 78; de Wet 2013, p. 543. 439 See Dinstein 2018, p. 302; Hoven 2014, p. 363. 440 See on the customary understanding of the crime of aggression, Werle and Jeßberger 2020, paras 1577 et seq. 441 See ICC Statute, Article 8bis.

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of application.442 However, the amendments of the ICC Statute containing the definition of the crime of aggression are far from being universally ratified as of September 2022.443 Their “equal force for all members of the international community” may also be challenged due to the amendments’ nature as treaty law. On the other hand, the amendments were negotiated in an inclusive process by both States and nonStates Parties,444 were ultimately adopted by consensus,445 and are open to universal ratification just like the ICC Statute.446 Moreover, the definition contained in the amendments builds on the language of previously existing international documents, such as Article 2(4) of the UN Charter and the UN General Assembly Resolution 3314.447 The definition only focuses on the uncontroversial core of the underlying customary prohibitions.448 It can be applied to nationals of both States Parties and non-States Parties in case of a UN Security Council referral.449 Ultimately, the genesis of the understandings to the Kampala Amendments suggests that States Parties were opposed to explicitly divorcing the new treaty definition from customary international law. They ensured to delete450 the problematic part of an understanding that would have required the Amendments to “not be interpreted as constituting a statement of the definition ‘crime of aggression’ or ‘act of aggression’ under customary international law”.451 Irrespective of whether the ICC Statute definition corresponds to the customary version of the crime of aggression,452 Dinstein contends that “the difference between them is more apparent than real”.453 The “pith of the Nuremberg legacy of ‘crimes against peace’ is preserved notwithstanding the dissimilar outer linguistic crust” of the ICC Statute definition due to the “manifest” threshold.454 442

On the question whether the crime of aggression departs from customary international criminal law, see Kreß 2017, pp. 526 et seq. See also McDougall 2017 443 For the status of ratifications, see https://treaties.un.org/. Accessed 15 September 2022. 444 See Barriga 2012, p. 5. 445 Ibid., p. 57. 446 See ICC Statute, Article 125(3): “This Statute shall be open to accession by all States”. 447 UN General Assembly 1974, Annex. 448 See ICC Statute, Article 8bis(1): “manifest”. 449 See ICC Statute, Article 15ter. 450 Kreß et al. 2012, p. 93. They only agreed to a modified version of the understanding that kept the unproblematic recital of vague Article 10 of the ICC Statute. See Review Conference of the Rome Statute 2010, Annex III, understanding 4. 451 The understanding initially proposed by the USA would have read: “The amendments shall, in accordance with article 10 of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute, and shall not be interpreted as constituting a statement of the definition ‘crime of aggression’ or ‘act of aggression’ under customary international law.” Reprinted in Kreß et al. 2012, p. 93. 452 According to Kreß, the ultimately adopted understanding rather confirms that the crime of aggression as defined under the ICC Statute shall be interpreted in light of customary international law and can thereby not depart from it, see Kreß 2017, p. 422. 453 Dinstein 2018, p. 285. 454 Ibid., p. 298. Delegations that supported the threshold clause noted that “it would appropriately limit the Court’s jurisdiction to the most serious acts of aggression under customary international law”, see Barriga and Kreß 2011b, para 24.

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However, the exact scope of the current customary international law definition is less relevant for the purpose of this chapter, which is only interested in an obligation to criminalize aggression as understood in the broader “working definition”.455 Regarding the underlying prohibition of aggression and the prohibition of the use of force, it is less controversial to classify them as “norms of general international law”. Both are widely considered to be part of customary international law and are reflected in the UN General Assembly Resolution 3314 and the UN Charter.456 The language of the definition of the crime of aggression under the ICC Statute illustrates its close connection to the underlying prohibitions by almost copying them verbatim.457 The “manifest” threshold of the crime ensures that it covers the core of the underlying prohibitions. The crime of aggression is thus based on a prohibition which is a “norm of general international law”. The second step is the assessment of the acceptance and recognition of the identified norms as peremptory by the international community of States as a whole. The nature of the underlying prohibition of aggression as compelling law has been widely accepted, and (perhaps misleadingly)458 asserted by many with respect to the prohibition of the use of force.459 Even the International Law Commission considered the prohibition of the use of force as a “conspicuous example” of a ius cogens norm in its work on the law of treaties in 1966.460 The less controversial view, however, is to perceive the prohibition of aggression, the narrow core of the prohibition of the use of force, as ius cogens. This has run through the work of the International Law Commission.461

455

See Sect. 2.1.3. above. On the customary law status of the prohibition of the use of force, see, ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, ICJ Reports 1986, p. 14, para 188. On the customary law status of the prohibition of aggression, see Commentary to Draft Conclusion 23 in International Law Commission 2019a, para 5. 457 See Chap. 3, Sect. 3.4.3. 458 Given that the prohibition of the use of force permits exceptions, namely the use of force in self-defense and upon authorization by the UN Security Council, it does not seem to be compatible with the conception as compelling law unless one understands the “prohibition of the use of force” as being framed in a broad way to include the exceptions to the prohibition. On the problem whether the “prohibition of the use of force” can be described as ius cogens, see Green 2011; Pobjie 2019, pp. 80 et seq.; Weatherall 2015, p. 224, fn. 154. 459 See, e.g., Crawford 2019, pp. 581 et seq.; Jennings and Watts 2008, p. 8. 460 See the Commentary to Draft Article 50, which eventually became Article 53 of the VCLT, in International Law Commission 1966, para 1. 461 See Commentary to Article 26 in International Law Commission 2001, para 5; see the nonexhaustive list of norms of ius cogens in the Annex to International Law Commission 2019a: “(a) The prohibition of aggression;...” 456

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That being said, one may object that the crime of aggression unlike the prohibition of aggression is not part of ius cogens.462 The US’ concerns at the Kampala Conference about the definition of the crime463 and the low number of ratifications of the Kampala Amendments464 could indicate a general sentiment that the criminalization of aggression as understood in Kampala is not that compelling.465 To address these concerns, it could be argued that it suffices that the crime of aggression is based on a prohibition whose peremptory character is accepted by the international community of States as a whole. As a comparison, the normative gap between the underlying prohibition and the crime did not prevent Tladi from discussing the possible duty for States to exercise jurisdiction over war crimes466 as a consequence of the ius cogens status of the underlying “basic rules of international humanitarian law”.467 The same reasoning should apply mutatis mutandis to the crime of aggression, which cannot be committed without manifestly violating the underlying ius cogens prohibition of aggression. Requiring a crime to have “ius cogens” status may also be slightly at odds with the original conception of ius cogens,468 which was addressed to States and not to individuals.469 In contrast, crimes under international law are committed by natural persons and not by abstract entities like States.470 The simultaneous recognition of both State and individual responsibility for violations of ius cogens norms in accordance with the “single act, dual responsibility” model471 requires a broader understanding of ius cogens norms. With the concept of “State crimes” rejected,472 it is dogmatically simpler to ascribe ius cogens status to the underlying prohibitions addressed to States and not to the crimes addressed to individuals. Crimes are only based on an underlying prohibition which constitutes a ius cogens norm. In that regard, the term “ius cogens crimes” is confusing. It can be interpreted as being synonymous with “core crimes” or as an expression of the ius cogens nature of the

462

But see the label of aggression as “ius cogens crime” in Bassiouni 1996, p. 68; Bassiouni 2013, p. 240; Sadat 2006, p. 974. 463 For the US position at the Kampala Conference, see Koh and Buchwald 2015; Pecorella 2021, pp. 192 et seq. To address the opposition of the United States, ius cogens does not require universal but only majoritarian acceptance and recognition. 464 For the status of ratifications, see https://treaties.un.org/. Accessed 15 September 2022. 465 For the purpose of this chapter, however, it would suffice that the peremptory character of the post-World War II version of the crime of aggression is not put into question. For a quite depressing account of the status of the crime of aggression, see Bassiouni 2018. 466 International Law Commission 2018c, paras 113 et seq. 467 See the non-exhaustive list of norms of ius cogens in the Annex to International Law Commission 2019a. 468 In the same vein, O’Keefe 2015, paras 2.80 et seq. 469 See VCLT, Article 53. In the same vein, O’Keefe 2015, para 2.80. 470 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447. 471 On the dual responsibility, see Weatherall 2015, pp. 394 et seq. 472 See, in detail, Ollivier 2010.

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basis of these crimes.473 This is why it suffices for the purpose of the ius cogens avenue to accept that the crime of aggression is based on a ius cogens norm, namely the prohibition of aggression.

2.6.4 Effects of a Ius Cogens Norm: An Obligation to (Extradite or) Prosecute and an Inherent Obligation to Criminalize? If the automatism of the ius cogens avenue holds true, the establishment of the ius cogens nature of the prohibition of aggression suffices to claim an obligation to prosecute, as well as an inherent obligation to criminalize aggression. Unlike their effects in the field of international treaty law474 and the law of State responsibility,475 the effects of ius cogens norms in the field of international criminal law are more controversial.476 This has recently been demonstrated by the failure of the International Law Commission to adopt draft conclusions on the duty to exercise domestic jurisdiction over crimes prohibited by peremptory norms or the non-applicability of immunity ratione materiae with regard to peremptory norms.477 Those arguing in favor of automatic effects of ius cogens in the field of international criminal law provide little reasoning.478 However, if the ius cogens avenue is rather “based on principle of logic”,479 the logic should be convincing. The following sections are devoted to finding explanations, which are mainly inspired by the generally accepted consequences of ius cogens in the field of international treaty law and the law on State responsibility. The envisaged parallel reasoning can be objected to for ignoring the frontiers between the different fields of law.480 It is still preferable, however, to the little substantiated claim of an automatic obligation to (extradite or) prosecute. Such a parallel reasoning is in line with what Focarelli calls the semideductive approach. It consists of “empirically proving that a certain jus cogens effect is produced in one legal context and…inferring a different effect in another context, 473

See also International Law Commission 2018c, para 114 whereby “crimes established by prohibitions under international law of a peremptory nature” is referred to “only for convenience, by the shorthand jus cogens crimes”. For a critical assessment of the allegation that crimes can have a ius cogens status, see O’Keefe 2015, paras 2.79 et seq. 474 See VCLT, Articles 53, 64. 475 See Article 41 in International Law Commission 2001. 476 Crawford 2019, p. 582; van Steenberghe 2011, p. 1092. 477 See Draft Conclusions 22 and 23 International Law Commission 2018c, p. 68. Ultimately, the International Law Commission adopted a “without prejudice” clause, see Draft Conclusion 22 in International Law Commission 2019a. 478 Bassiouni 1996, p. 65; Bassiouni and Wise 1995; Cassese 2012, p. 167. In the same vein, Goodwin-Gill 1999, p. 220; Orakhelashvili 2006, p. 305. 479 Kittichaisaree 2018, p. 108. 480 Especially the legal autonomy of the regimes on State responsibility and individual criminal responsibility. See, e.g., ICC Statute, Article 25(4).

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again without apparently any need to specifically test the effect thus inferred against international practice”.481

2.6.4.1

Inference from International Treaty Law: Overriding Power vis-à-vis Legislative Interests of States?

For parallel reasoning, the functioning of ius cogens norms under international treaty law needs to be made more abstract. Article 53 of the VCLT establishes that “[a] treaty is void if…it conflicts with a peremptory norm of general international law”.482 The voidability of treaties conflicting with ius cogens is, in abstract terms, a restraint to the law-making power of States.483 The consequence of a treaty being rendered void shows a limitation of the consensual nature of international law in favor of the protection of fundamental collective interests.484 Even if States have a self-interest in concluding a treaty that conflicts with ius cogens, the protection of collective interests prevails.485 It could be assumed that the nature of ius cogens norms renders irrelevant conflicting self-interests of States and restrains their law-making power by reducing the discretion of the domestic legislature to an obligation. This parallel reasoning, however, neglects essential differences to Article 53 of the VCLT. First, there is only an “indirect conflict”486 with the peremptory prohibition of aggression. Legislative inaction does not violate this ius cogens norm. It only impedes its full protection.487 A direct conflict488 with ius cogens would be caused by the rare phenomenon of treaties that allow States, for example, to cause aggression against another State.489 Secondly, Article 53 of the VCLT renders treaties of international law void.490 The

481

Focarelli 2008, p. 447. See also Draft Conclusion 10(1) in International Law Commission 2019a. 483 Cassese 2012, p. 160; Kleinlein 2016, p. 181. 484 See also Constantinides 2018, p. 278; Herdegen 2020, §3 mn. 3; Klein 1988, p. 351. 485 Cassese 2012, p. 160; Orakhelashvili 2006, pp. 8 et seq.; de Wet 2013, p. 543: “the collective will, underpinned by shared values of the international community of states, can overrule the will of an individual state”; Shelton 2006, p. 299. 486 See Kleinlein 2016, p. 184. 487 This is why Article 53 of the VCLT has been criticized. See d’Amato 1990; Cannizzaro 2011, p. 440; Cassese 2012, pp. 159 et seq., who wonders whether Article 53 of the VCLT is therefore “an outright flop”. 488 Van Steenberghe 2011, p. 1092. 489 For the rare example of a treaty with provisions that authorize conduct that violates ius cogens and is thus void, see the agreement between Germany and Vichy France to use French prisoners of war in the armament industry, mentioned in US Military Tribunal Nuremberg, Krupp et al., Judgment, 31 July 1948, in Allied Control Council No. 10 1949b, pp. 1394 et seq. 490 See Kleinlein 2016, p. 181. 482

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impact on the domestic legal order is not dealt with by Article 53 of the VCLT.491 The hierarchical superiority of ius cogens which underlies Article 53 of the VCLT only describes its status within international law.492 It is difficult to loosely base an obligation to criminalize aggression on the effects that ius cogens has under international treaty law.

2.6.4.2

Inference from the Law on State Responsibility

It may be more promising to engage in parallel reasoning inspired by the effects of ius cogens under the law on State responsibility. As codified in the Draft Articles of the International Law Commission,493 serious breaches of an obligation arising under a ius cogens norm generate special obligations for all States, inter alia, “to cooperate to bring to an end through lawful means” those breaches.494 This does not necessarily equate to additional obligations for the responsible State. The latter is under an obligation to make reparations irrespective of the peremptory nature of the violated norm. Duty of Every State “to Cooperate to Bring to an End Through Lawful Means” Serious Breaches of an Obligation Arising Under a Ius Cogens Norm The obligation to extradite or prosecute may be comparable to an obligation for every State “to cooperate to bring to an end through lawful means” the serious breach of the prohibition of aggression.495 States could be considered to engage in “cooperation” in criminal matters when they hand over a suspect for trial to another State under the “extradition” limb or take own judicial actions to end the breaches under the “prosecution” limb. Without the prior criminalization of aggression, States would be ab initio unable to prosecute the crime of aggression whose core wrong is not covered by ordinary criminal offenses. This is why the inferred obligation to extradite or prosecute would include an obligation to criminalize.

491

Cassese 2012, p. 167, whereby the effect on the national legal order was totally neglected when drafting the Vienna Convention on the Law of Treaties. For a discussion of the impact of ius cogens on domestic law, see Paulus 2005, pp. 319 et seq.; Schmalenbach 2018, paras 73 et seq. 492 Paulus 2005, p. 319 (“The supposed hierarchy was within international law, not between international and domestic law.”). 493 See International Law Commission 2001. 494 As well as the duty not to recognize as lawful a situation created by them and the duty not to render aid or assistance in maintaining that situation. See Draft Article 41(1) and (2) in International Law Commission 2001 See also on the additional obligations Kolb 2015, p. 106. 495 See the statement of the Spanish member Ms. Escobar Hernández in International Law Commission 2018b, p. 9: “[T]hat duty could derive from the duty to cooperate in bringing any serious breach of a peremptory norm to an end, in line with article 41 of the articles on State responsibility, and was also linked to the duty not to render aid or assistance in the maintenance of a situation created by a breach of a peremptory norm.” See also Orakhelashvili 2006, p. 307, who perceives the required form of cooperation in the “arrest, prosecution and extradition of perpetrators”.

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Cryer rejects the inference of an obligation to prosecute flowing from the duty “to cooperate to bring to an end those breaches” because the latter rather relates to political co-operation and not judicial means.496 The Commentary of the International Law Commission on the duty “to cooperate to bring to an end through lawful means”, however, does not explicitly suggest such a limitation.497 By contrast, the genesis of the International Law Commission’s Draft Articles on State responsibility militates against the assumption of an obligation to extradite or prosecute. This obligation was still included in the initial draft articles,498 but was ultimately replaced by an article which makes clear that the draft articles are “without prejudice” to any question of individual responsibility.499 The exercise of jurisdiction by a State is rather a unilateral act and not a collective mechanism of cooperation to respond to the breach.500 The “cooperation” of a State would only consist of considering the extradition of the suspect. Such an understanding of the obligation to cooperate would lead to an obligation to extradite or prosecute, including the inherent obligation to criminalize aggression for every State. However, it is unclear whether third States have a right to exercise jurisdiction over the crime of aggression.501 This is why one may fairly doubt whether an obligation to extradite or prosecute is comparable to the obligation “to cooperate to bring to an end through lawful means” serious breaches. Duty of the Aggressor State to Make Reparations With respect to the responsible State,502 the law of State responsibility may provide argumentative support for the claimed automatic obligation to prosecute (or extradite). For the responsible State, serious breaches of an obligation under a ius cogens norm do not generate different obligations from those arising under “ordinary” norms. 496

Cryer 2010, p. 113. Similarly, Costelloe 2017, p. 191, whereby an obligation to prosecute cannot be inferred from the distinct obligations of non-recognition and non-assistance; Evans 2018, pp. 423 et seq., who states that “the principal avenues for such cooperation are through the various international organizations, in particular the Security Council”. 497 Due to the “diversity of circumstances”, it “does not prescribe in detail what form this cooperation should take”, “[n]either does [it] prescribe what measures States should take in order to bring an end to serious breaches”. See Commentary to Article 41 in International Law Commission 2001, paras 2 et seq. 498 See Draft Article 18(1)(e) in International Law Commission 1995. On this Draft Article and its relevance for the question whether the responsible State is under an obligation to take legal action against the individual perpetrators, see also Tams 2002, pp. 1173 et seq. 499 See Draft Article 58 in International Law Commission 2001: “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.” 500 See Gärditz 2006, p. 236. See also Commentary to Draft Conclusion 19 in International Law Commission 2019a, para 3: “Although international law does not prohibit unilateral measures to bring to an end a serious breach of a peremptory norm of general international law (jus cogens) if such unilateral measures are consistent with international law, the emphasis in the first paragraph of draft conclusion 19 is on collective measures. This is the essence of ‘cooperation’.” 501 See, in detail, Chap. 7, Sect. 7.7. An obligation to exercise universal jurisdiction is rather generally rejected for crimes under international law, see Cryer 2010, pp. 111 et seq. 502 Or for the purpose of this chapter the aggressor State.

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The responsible State is under an obligation to make reparations.503 In case of crimes that are based on a ius cogens norm, such as the crime of aggression, one could suppose that the caused injury can hardly be made good by restitution or compensation only and always requires the third form of reparation, that is satisfaction.504 Satisfaction includes “disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act”.505 Several scholars contend that the responsible State is under an obligation, by way of reparation, to bring perpetrators of crimes under international law to justice, especially if their public officials or State organs are involved in those crimes and they affect other States.506 Both conditions are fulfilled for a crime of aggression, which is based on a State act of aggression committed by persons on behalf of the State against another State.507 It could be objected that obligations under the law of State responsibility only arise if an international obligation is breached. Prior to that, there is no “responsible State” which could be required to make reparations by punishing individual perpetrators. Due to the nullum crimen, nulla poena sine lege principle, however, the responsible State can only fulfill its obligation to exercise criminal jurisdiction if it has previously criminalized the conduct. In the absence of a domestic criminalization of aggression, future responsible States would not be able to fulfill their obligation to make reparations in the form of domestic prosecutions.508 In that regard, it could be assumed that the criminalization of aggression is necessary for States to ensure their potential to make reparations in case their own State leaders commit aggression against another State.

2.6.4.3

Ensuring the Effet Utile of Ius Cogens Norms

Instead of building on the effects of ius cogens in other fields of law, the automatic obligation to prosecute (or extradite), including the inherent obligation to criminalize aggression, could simply be based on an effet utile reasoning.509 The effective protection of ius cogens norms requires to attach wider effects and the greatest possible 503

See Article 31 in International Law Commission 2001. See Draft Article 37(1) in International Law Commission 2001: “The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.” 505 Commentary to Draft Article 37 in International Law Commission 2001, para 5. 506 De Hoogh 1996, pp. 163 et seq., whereby a “means of satisfying an injured State consists of the prosecution…of the persons…responsible for the acts committed”; Cryer 2010, pp. 111 et seq. whereby in circumstances where persons are acting on behalf of the State and “where international crimes affect other States, punishment by the territoriality or nationality State can be ordered as reparation.”; Nollkaemper 2003, p. 637; van der Wilt 2011, p. 1050. 507 See ICC Statute, Article 8bis. 508 They would need to extradite the person to another State or surrender them to an international court. 509 Similarly, Kleinlein 2016, p. 184; Schmalenbach 2018, para 75 whereby the array of legal obligations that are claimed to arise from the ius cogens character of core crimes “reflect the desire for maximum effectiveness of international criminal law”; de Wet 2013, p. 549. On the “effet utile” 504

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realization mechanism to these norms.510 For crimes that are based on a ius cogens norm, this means that their purpose of preventing and suppressing certain conduct can be better achieved by removing all obstacles from the path of accountability.511 One obstacle, especially for crimes with State involvement, is the reluctance of States to prosecute or criminalize the conduct of their own or foreign State officials. An obligation to prosecute and a previous obligation to criminalize aggression seems to better ensure the effective protection of the underlying ius cogens norm. However, opinions may differ as to what is necessary for an “effective protection”. “Effective” is a normative term. Does an effective protection even require the consequences to be of peremptory nature?512 Arguing with the effet utile of ius cogens norms risks to “irradiate into an indefinable number of corollary normative propositions”.513 From the perspective of compliance theory, an obligation whose existence is the outcome of an ambiguous interpretative process is not necessarily more effective in producing the desired result.514

2.6.5 Conclusion to Ius Cogens It is questionable whether ius cogens can serve as a magical “trump card”515 that automatically leads to an obligation to prosecute and creates an exemption from establishing specific State practice and opinio iuris for the obligation. Scholars,516

or principle of effectiveness in the interpretation of international treaties, see Herdegen 2013, paras 30 et seq.; Lauterpacht 1949, pp. 67 et seq. 510 Similarly, albeit in more general terms, see Thirlway 2019, p. 164: “There has inevitably been a temptation for scholars to attach wider effects to the concept, since by definition a norm of jus cogens is a benevolent one, to be given, for that reason, the greatest possible scope.” See also Bassiouni and Wise 1995, p. 52: “In a decentralized international system, prohibitions of international offenses will be meaningful only in so far as states are regarded as having an overriding obligation to bring those who perpetrate such offenses to justice. This is not or should not be an obligation that can be contracted away.” 511 See also the interpretation of Bassiouni’s position by Seibert-Fohr 2009, p. 251: “He claims that once an international crime forms part of jus cogens it also requires the effective punishment or the extradition of the perpetrators by all States”. 512 For a critical discussion on whether the legal effects of ius cogens are themselves peremptory, see Kolb 2015, pp. 109 et seq. 513 Kolb 2015, p. 110. 514 Guzman 2002, p. 1863. 515 Kleinlein 2016, p. 205; Kolb 2015, pp. 25 et seq. On the magical power of ius cogens norms, see Bianchi 2008; d’Amato 1990, p. 1. 516 Ambos 2018b, para 11; Cryer 2010, pp. 110 et seq.; Kittichaisaree 2018, pp. 106 et seq.; Kolb 2015, pp. 113 et seq.; Mitchell 2009, para 80; Seibert-Fohr 2009, pp. 251 et seq.

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States517 and members of the International Law Commission518 have expressed concerns with respect to this Bassiounian automatism. There is an inherent risk that the deduction of specific effects from the ius cogens nature of norms without providing State practice and opinio iuris is theoretically unlimited in scope.519 On the other hand, what would be the added value of a ius cogens basis, if the obligation to prosecute and the inherent obligation to criminalize aggression required the same burdensome process of establishing general practice accepted as law as any other crime based on a non-peremptory norm? Focarelli admits that “jus cogens has a specificity only when it is conceptualised as triggering logical inferences capable of producing results which are not reachable otherwise, i.e., empirically. Once logical inferences are partially or totally ruled out, no jus cogens apparently remains.”520 Kolb, who also rejects the Bassiounian automatism, still grants judges the right to find effects of ius cogens “which are not yet completely settled in practice”.521 A ius cogens reasoning could still be brought to fruition. Rather than as a separate purely deductive avenue, it would be part of a semi-deductive reasoning, which builds on accepted consequences of ius cogens in other fields of law. Alternatively, it would be integrated into the customary international law avenue by reducing the amount of required State practice and opinio iuris for the crystallization of a specific obligation. This strikes the right balance. It pays deference to the specificity of ius cogens without completely detaching it from what is normally necessary to give rise to a specific customary obligation. There is some room for a semi-deductive reasoning which infers an obligation to criminalize from the accepted consequences of ius cogens in the field of State responsibility. An obligation to criminalize aggression ensures the ability of States to fulfill their obligation to make reparations if their own State agents commit aggression against other States. It is less promising to claim an obligation to criminalize by integrating ius cogens reasoning in the previously presented customary international law avenue. This permits the ius cogens basis of the crime of aggression to trigger logical inferences capable of producing results which are not yet completely settled in practice. The aggression-specific practice of an obligation to prosecute or to criminalize, however, is too limited to be compensated by the triggering effect of ius cogens. Inferring a ius cogens-based obligation to criminalize aggression from accepted consequences of ius cogens in the field of State responsibility would not necessarily lead to compliance. An obligation whose existence or origin is subject to debate can 517

See the summary of State comments on Draft Article 4 proposed by the Special Rapporteur Galicki for the Obligation to Extradite or Prosecute (aut dedere aut judicare) in International Law Commission 2012, para 48. See the summary of State comments on Draft Conclusion 22 proposed by the Special Rapporteur Tladi in International Law Commission 2019c, para 24. 518 See Mr. Murphy in International Law Commission 2018d; Mr. Nolte in International Law Commission 2018e; Mr. Rajput in International Law Commission 2018f; Mr. Huang in International Law Commission 2018g; Sir Michael Wood in International Law Commission 2018h. 519 Kolb 2015, p. 109. 520 Focarelli 2008, p. 449. 521 Kolb 2015, p. 114.

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be violated by non-criminalization without high reputational costs.522 Although the nature of ius cogens as compelling law promises a degree of hardness in terms of “bindingness”, and additional enforcement mechanisms, the claimed obligation is softer due to the existing controversies about whether its genesis needs to respect the same requirements as other norms under international law.

2.7 Conclusion This chapter examined whether domestic law or international law gives rise to an obligation to criminalize aggression domestically. Instead of adopting a binary perspective, the assessment considered the level of precision of the norms and the possible mechanisms of enforcement in case of a violation. This helps emphasize the qualitative differences that exist in terms of compliance. Although domestic constitutional law provides a “harder” enforcement mechanism due to the common possibilities of judicial review, constitutional obligations to criminalize aggression are rare and differ with respect to the level of precision. They range from the German explicit obligation to criminalize aggression to the more burdensome (but not yet officially affirmed) inference from the obligation to protect fundamental rights. While a teleological interpretation of the vague provisions on complementarity of the ICC Statute could lead to an implied obligation to implement ICC Statute crimes into domestic law, controversies over the existence of such an obligation lower the reputational costs of non-criminalization. The softness of the principle of complementarity, in terms of the clarity of an obligation, is normally compensated for by its hardness in terms of available enforcement mechanisms. Irrespective of an obligation, complementarity normally has a coercive potential to achieve the same desired result—namely domestic criminalization, based on the threat of judicial interventions. However, due to restricted aggression jurisdiction of the International Criminal Court and the few complementarity-inspired domestic implementations, the coercive potential of complementarity on States is reduced. States are not necessarily urged to proactively criminalize aggression to avoid an intervention by the International Criminal Court, or by domestic courts of other States. If the human rights relevance of aggression is acknowledged, an obligation to criminalize aggression can be inferred from the general obligation of States to ensure the human right to life “within their jurisdiction”. It is less burdensome to claim a human rights obligation of States to criminalize foreign acts of aggression that result in killings in their own territory. Claiming the reversed obligation to criminalize a State’s own acts of aggression that result in killings abroad is more difficult under the stricter ECHR than under the ICCPR. The former is geographically inapplicable in foreign territory not (yet) under the State’s “effective control”. A human rights obligation to criminalize aggression is rather soft. Thus, its violation is not accompanied 522

Guzman 2002, p. 1863.

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by serious reputational costs. This is due to the challenging interpretative process which is necessary for such an obligation and its outstanding full recognition by human rights bodies. There is no customary international law obligation to criminalize aggression under domestic law. Aggression-specific material is too limited and too vague. The general obligation of the territorial State and the national State to prosecute crimes under international law is mostly based on State practice with respect to genocide, crimes against humanity, and war crimes. However, this obligation can be discharged by resorting to existing ordinary criminal offenses. This is why it does not imply an obligation to criminalize. An extension of the obligation to prosecute to the crime of aggression, in contrast, would automatically imply an obligation to criminalize aggression due to the lack of alternative ordinary criminal offenses. This would unduly privilege aggression compared to the core crimes that provided State practice on the obligation to prosecute in the first place. There is room to infer an obligation to criminalize from the accepted consequences of ius cogens in the field of State responsibility. An obligation to criminalize aggression ensures that States can fulfill their obligation to make reparations in the form of criminal prosecutions if their own State agents commit aggression against other States. The lack of sufficient State practice in favor of the specific obligation to criminalize is irrelevant due to the specificity of the ius cogens prohibition of aggression to trigger certain logical inferences. Due to the existing controversies about whether a ius cogens-based obligation needs to respect the same requirements as other norms under customary international law, the claimed obligation to criminalize aggression is softer in terms of clarity. To conclude, it is not precluded to infer an obligation to criminalize aggression from the obligation of States under constitutional law to protect fundamental rights, their obligation to protect international human rights or from the ius cogens nature of the prohibition of aggression. Their inference, however, requires an extensive interpretative process, which is why the claimed existence of an obligation to criminalize aggression does not induce compliance.

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Schabas W A, El Zeidy M M (2021) Article 17. In: Ambos K (ed) Rome Statute of the International Criminal Court, 4th edn. C.H. Beck, Munich Schabas W A, Pecorella G (2021) Article 12. In: Ambos K (ed) Rome Statute of the International Criminal Court, 4th edn. C.H. Beck, Munich Scharf M (1996) The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes. Law and Contemporary Problems 59: 41–61 Scharf M P (2007) Jurisdiction with Respect to Crime: Universal Jurisdiction and the Harvard Research. In: Grant J P, Barker J C (eds) The Harvard Research in International Law: Contemporary Analysis and Appraisal. William S. Hein, Buffalo, NY, pp 275–306 Schmalenbach K (2018) Article 53. In: Dörr O, Schmalenbach K (eds) Vienna Convention on the Law of Treaties: A Commentary, 2nd edn. Springer, Berlin/Heidelberg Seibert-Fohr A (2003) The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions. Max Planck Yearbook of United Nations Law 7: 553–590 Seibert-Fohr A (2009) Prosecuting Serious Human Rights Violations. Oxford University Press, New York Sender O, Wood M (2016) The Emergence of Customary International Law: Between Theory and Practice. In: Brölmann C, Radi Y (eds) Research Handbook on the Theory and Practice of International Lawmaking. Edward Elgar Publishing, Cheltenham/Northampton, pp 133–159 Shaffer G, Pollack M A (2013) Hard and Soft Law. In: Dunoff J L, Pollack M A (eds) Interdisciplinary Perspectives on International Law and International Relations: The State of the Art. Cambridge University Press, Cambridge, pp 197–222 Shaw M N (2017) International Law, 8th edn. Cambridge University Press Shaw M N (2021) International Law, 9th edn. Cambridge University Press Shelton D (2006) Normative Hierarchy in International Law. American Journal of International Law 100: 291–323 Shelton D, Gould A (2013) Positive and Negative Obligations. In: Shelton D (ed) The Oxford Handbook of International Human Rights Law. Oxford University Press, Oxford, UK/New York, NY, pp 562–584 Skjærseth J B (2010) Exploring the Consequences of Soft Law and Hard Law: Implementing International Nutrient Commitments in Norwegian Agriculture. International Environmental Agreements 10: 1–14 Stahn C (2008) Complementarity: A Tale of Two Notions. Crim Law Forum 19: 87–113 Stahn C (2011) Taking Complementarity Seriously: On the Sense and Sensibility of “Classical”, “Positive” and “Negative” Complementarity. In: Stahn C, El Zeidy M M (eds) The International Criminal Court and Complementarity. Cambridge University Press, Cambridge, pp 233–282 Stahn C (2019) A Critical Introduction to International Criminal Law. Cambridge University Press, Cambridge Steinsiek M (2020) § 80a. In: Rissing-van Saan R, Radtke H, Rönnau T, Schluckebier W, Cirener G (eds) Strafgesetzbuch: Leipziger Kommentar: Großkommentar, 13th edn. De Gruyter, Berlin Strapatsas N (2010) Complementarity and Aggression: A Ticking Time Bomb? In: Stahn C, van den Herik L (eds) Future Perspectives on International Criminal Justice. T.M.C. Asser Press, The Hague Stratmann J (1971) Das grundgesetzliche Verbot friedensstörender Handlungen: Ein Beitrag zur Auslegung des Art. 26 Abs. 1 GG Talmon S (2015) Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion. European Journal of International Law 26: 417–443 Tams C J (2002) Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State? European Journal of International Law 13: 1161–1180 Taylor P M (2020) A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights. Cambridge University Press, Cambridge Tehindrazanarivelo D L, Kolb R (2006) Peace, Right to, International Protection. In: Wolfrum R (ed) Max Planck Encyclopedias of Public International Law (online edn)

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Terracino J B (2007) National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC. Journal of International Criminal Justice 5: 421–440 Thirlway H W A (2019) The Sources of International Law, 2nd edn. Oxford University Press, Oxford Thürer D (2009) Soft Law. In: Wolfrum R (ed) Max Planck Encyclopedias of Public International Public Law (online edn) Tickhonov A A (1985) The Inter-Relationship Between the Right to Life and the Right to Peace: Nuclear Weapons and Other Weapons of Mass-Destruction and the Right to Life. In: Ramcharan B G, Hague Academy of International Law (eds) The Right to Life in International Law. Martinus Nijhoff, Dordrecht/Boston, pp 97–113 Tomuschat C (2002) The Duty to Prosecute International Crimes Committed by Individuals. In: Cremer H-J, Giegerich T, Richter D, Zimmermann A (eds) Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger. Springer, Berlin, pp 315–349 Tomuschat C (2014) Human Rights: Between Idealism and Realism, 3rd edn. Oxford University Press, Oxford Trahan J (2013) Is Complementarity the Right Approach for the International Criminal Court’s Crime of Aggression-Considering the Problem of Overzealous National Court Prosecutions. Cornell International Law Journal 45: 569–601 Trahan J (2018) From Kampala to New York—The Final Negotiations to Activate the Jurisdiction of the International Criminal Court over the Crime of Aggression. International Criminal Law Review 18: 197–243 Trahan J (2019) Revisiting the Role of the Security Council Concerning the International Criminal Court’s Crime of Aggression. Journal of International Criminal Justice 17: 471–483 Trahan J (2020) Existing Legal Limits to Security Council Veto Power in the Face of Atrocity. Cambridge University Press, Cambridge, UK/New York, NY, USA Triffterer O, Bergsmo M, Ambos K (2021) Preamble. In: Ambos K (ed) Rome Statute of the International Criminal Court, 4th edn. C.H. Beck, Munich UN General Assembly (1970) Resolution, Question of the Punishment of War Criminals and of Persons who have Committed Crimes Against Humanity, 15 December 1970, UN Doc. A/RES/2712(XXV) UN General Assembly (1971) Resolution, Question of the Punishment of War Criminals and of Persons who have Committed Crimes Against Humanity, 18 December 1971, UN Doc. A/RES/2840 UN General Assembly (1973) Resolution, Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, 3 December 1973, UN Doc. A/RES/3074(XXVIII) UN General Assembly (1974) Resolution, Definition of Aggression, 14 December 1974, UN Doc. A/RES/3314(XXIX) UN General Assembly (1995) Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22 UN General Assembly (2016a) Resolution, Declaration on the Right to Peace, 19 December 2016a, UN Doc. A/RES/71/189 UN General Assembly (2016b) Seventy-First Session, 65th Plenary Meeting, 19 December 2016b, UN Doc. A/71/PV.65 UN General Assembly (2022a) Resolution, Aggression against Ukraine, 2 March 2022a, UN Doc. A/RES/ES-11/1 UN General Assembly (2022b) Resolution, Humanitarian Consequences of the Aggression against Ukraine, 24 March 2022b, UN Doc. A/RES/ES-11/2 UN General Assembly Third Committee (2016) Resolution, Declaration on the Right to Peace, 18 November 2016, UN Doc. A/C.3/71/L.29 UN Human Rights Committee (1982) General Comment No. 7, Article 7, Prohibition of Torture or Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. HRI/GEN/1/Rev.6 UN Human Rights Committee (1983) General Comment No. 11, Article 20, Prohibition of Propaganda for War and Inciting National, Racial or Religious Hatred, UN Doc. HRI/GEN/1/Rev.6

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UN Human Rights Committee (1992) General Comment No. 20, Article 7, Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. HRI/GEN/1/Rev.6 UN Human Rights Committee (2004) General Comment No. 31, Article 2, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add. 13 UN Human Rights Committee (2018) General Comment No. 36, Article 6, Right to Life, UN Doc. CCPR/C/GC/36 UN Human Rights Council (2016) Resolution, Declaration on the Right to Peace, 1 July 2016, UN Doc. A/HRC/RES/32/28 UN Human Rights Council (2022) Resolution, Situation of Human Rights in Ukraine Stemming from the Russian Aggression, 4 March 2022, UN Doc. A/HRC/RES/49/1 van den Wyngaert C, Ongena T (2002) Ne bis in idem Principle, Including the Issue of Amnesty. In: Cassese A, Gaeta P, Jones, John R W D (eds) The Rome Statute of the International Criminal Court: A Commentary. Oxford University Press, Oxford/New York, pp 705–730 van der Wilt H (2011) Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States. Journal of International Criminal Justice 9: 1043–1066 van der Wilt H (2015) Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test. Nordic Journal of International Law 84: 515–531 van Schaack B (2012) Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression. Journal of International Criminal Justice 10: 133–164 van Steenberghe R (2011) The Obligation to Extradite or Prosecute: Clarifying its Nature. Journal of International Criminal Justice 9: 1089–1116 Veroff J (2016) Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward. The Yale Law Journal 125: 730–772 Villiger M E (2009) Commentary on the 1969 Vienna Convention on the Law of Treaties. Nijhoff, Leiden Vitzthum W (2019) Begriff, Geschichte und Rechtsquellen des Völkerrechts [The Notion, History and Sources of International Law]. In: Vitzthum W G, Proelß A (eds) Völkerrecht, 8th edn. De Gruyter, Berlin, pp 1–71 von Mangoldt H, Klein F, Starck C (eds) (2018) Kommentar zum Grundgesetz [Commentary on the German Constitution], 7th edn. Vahlen/C.H. Beck, Munich Weatherall T (2015) Jus Cogens: International Law and Social Contract. Cambridge University Press, Cambridge Weil P (1983) Towards Relative Normativity in International Law? American Journal of International Law 77: 413–442 Weisbord N (2017) Civil Society. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1310–1345 Wenzel N (2008) Human Rights, Treaties, Extraterritorial Application and Effects. In: Wolfrum R (ed) Max Planck Encyclopedias of Public International Law (online edn) Werle G (2010) Die Zukunft des Völkerstrafrechts [The Future of International Criminal Law]. In: Grundmann S, Kloepfer M, Paulus C G, Schröder R, Werle G (eds) Festschrift 200 Jahre Juristische Fakultät der Humboldt-Universität zu Berlin. De Gruyter, Berlin/New York, pp 1219– 1239 Werle G, Jeßberger F (2002) International Criminal Justice is Coming Home: The New German Code of Crimes against International Law. Criminal Law Forum 13: 191–223 Werle G, Jeßberger F (2020) Principles of International Criminal Law, 4th edn. Oxford University Press, Oxford Werner W G (2016) State Consent as Foundational Myth. In: Brölmann C, Radi Y (eds) Research Handbook on the Theory and Practice of International Lawmaking. Edward Elgar Publishing, Cheltenham, pp 13–31 Witschen D (2018) Gibt es ein Menschenrecht auf Frieden?: Eine rechtsethische Kontroverse [Does a Human Right to Peace Exist?]. Verlag W. Kohlhammer, Stuttgart

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Worster W T (2014) The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches. Georgetown Journal of International Law 45: 445–521 Wrange P (2017) The Crime of Aggression, Domestic Prosecutions and Complementarity. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 704–751 You P (1941) Le préambule des traités internationaux. Imprimerie St-Paul, Fribourg Zimmermann A, Freiburg-Braun E (2019) Aggression Under the Rome Statute. C.H. Beck, Munich

Other Documents Czech Republic (2006) Second Periodic Report, 29 November 2006, UN Doc. CCPR/C/CZE/2 Estonia Eelnõu SE 119. Seletuskiri karistusseadustiku eelnõu juurde [Explanatory Memorandum to the Draft of the Penal Code (SE 119)] European Parliament (2014) Resolution on the Crime of Aggression, 17 July 2014, 2014/2724(RSP) European Union (2022) Informal Meeting of Heads of State or Government, Versailles Declaration, 10 and 11 March 2022 Paraguay (2004) Second Periodic Report, 3 August 2004, UN Doc. CCPR/C/PRY/2004/2 Parliamentary Assembly of the Council of Europe (2022) Resolution 2436, The Russian Federation’s Aggression Against Ukraine: Ensuring Accountability for Serious Violations of International Humanitarian Law and Other International Crimes, 28 April 2022 Review Conference of the Rome Statute (2010) Resolution RC/Res.6 of 11 June 2010

Chapter 3

The Core Wrong of the Crime of Aggression

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Approaching the “Core Wrong” of a Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 The Offense Definition and the “International Element” . . . . . . . . . . . . . . . . . . . . 3.2.2 The Theory on Protected Legal Interests (Rechtsgüterlehre) . . . . . . . . . . . . . . . . 3.2.3 Protected Legal Interests and Type of Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 State Sovereignty as a Protected Legal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 The State Interests Mentioned in Article 8bis(2) of the ICC Statute . . . . . . . . . . 3.3.2 The Underlying Acts Against Another State in Article 8bis(2) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 The Need to Move Beyond the Bilateral Sphere . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 International Peace as a Protected Legal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 The Multifaceted Concept of Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 The Preambular Presumption of the ICC Statute: Peace as an Overarching Protected Legal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 The Underlying Prohibition of the Use of Force as a Means to Protect Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.4 The Crime of Aggression as the Post-Nuremberg Version of the “Crime Against Peace” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Individual Interests as Protected Legal Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 The Protection of Individual Interests by Crimes Under International Law? . . . . . 3.5.2 The Humanization of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.3 Humanized Sovereignty: The Protection of State Sovereignty to Protect Rights of Those Living Within the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.4 The “Manifest” Threshold Cannot be Fulfilled Without Affecting Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.5 Lower Level of Protection of Individual Interests by Triggering International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.6 Conclusion to Individual Interests as Protected Legal Interests . . . . . . . . . . . . . . 3.6 The Type of Attack on the Protected Legal Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1 Use of Armed Force by a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.2 The Aggressive Use of Armed Force: A Manifest Violation of the Ius ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.3 Committed by Persons from the Leadership Circle of a State . . . . . . . . . . . . . . . . 3.6.4 Conclusion to the Type of Attack . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The need to implement the crime of genocide, crimes against humanity and war crimes was justified in Germany by the inability of domestic law to adequately reflect the core wrong of these crimes. To perform the same analysis for the then omitted crime of aggression, this chapter starts with identifying the core wrong of the crime as defined under Article 8bis of the ICC Statute. It does so by determining the “protected legal interests” of the crime before specifying the “type of attack” from which these interests are protected. This chapter breaks with the traditional view that perceives aggression as a crime that primarily protects State interests. It emphasizes the importance of the protection of international peace for the classification as a “crime under international law”. It argues that the crime of aggression can better address the unease resulting from the “humanization of international law” if conceptualized as a crime that also protects individual interests. It presents three possibilities to explain this human protective core of aggression. The chapter ultimately turns to the “type of attack”. It illuminates the limited protection of the identified protected interests from the use of armed force “by a State” which amounts to a “manifest violation” of the ius ad bellum and by persons who belong to the “leadership circle” of a State. The findings serve as a frame of reference for assessing in Chap. 4 the extent to which domestic criminal offenses can capture the core wrong of the crime of aggression. Keywords Core wrong · International element of “crimes under international law” · Protected legal interests · Type of attack · State sovereignty · International peace · Prohibition of the use of force · Individual interests · Collective interests · Personale Rechtsgutslehre · Humanization of international law · Manifest violation of the UN Charter · Triggering the application of international humanitarian law · Exclusion of non-State actor violence · Leadership crime · Revisionists and the philosophy of war

3.1 Introduction This chapter aims to extract the core wrong of the crime of aggression as defined under Article 8bis of the ICC Statute.1 Although an offense definition conveys the typical wrong of a crime,2 this chapter does not seek to explain every constitutive element of Article 8bis of the ICC Statute. This has extensively been done by others.3 The identification of the “core wrong”, a combination of two vague notions, naturally requires a normative assessment. Instead of engaging in general normative theorizing, the

1

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 2 See Jescheck and Weigend 1996, pp. 245 et seq.; Rengier 2020, para 1; Roxin 2006, pp. 284 et seq. 3 See, in particular, Kreß and Barriga 2017, Chapters 13–16; Zimmermann and Freiburg-Braun 2019.

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chapter assesses the core wrong for the specific purpose of implementation.4 The identified core wrong will set the frame of reference in Chap. 4 for reviewing the ability of domestic criminal law to capture what is essentially criminalized by the crime of aggression. This exercise was also part of the legislative implementation of the crime of genocide, crimes against humanity and war crimes in Germany after the Rome Conference.5 Experts involved in the legislative process argued with the “specific wrong” of each of these crimes to emphasize the need for implementation.6 They acknowledged that it was mostly possible to punish, for example, the commission of crimes against humanity using existing ordinary criminal offenses, such as murder or criminal assault.7 These offenses against individual interests, however, would not adequately reflect the core wrong of crimes against humanity, namely their commission “as part of a widespread or systematic attack directed against any civilian population”.8 The first part of this analysis—the elaboration of the core wrong of the crime of aggression—is the subject of this chapter.

3.2 Approaching the “Core Wrong” of a Crime An essential question for this chapter is how to define the “core wrong” of a crime. There is not a generally accepted method. Potential methods are the definition of the offense, particularly its “international element” (Sect. 3.2.1), the theory of the protected legal interests (Sect. 3.2.2) as well as a combination of the protected legal interests and the type of attack (Sect. 3.2.3).

3.2.1 The Offense Definition and the “International Element” A first possibility is to take the offense definition, which conveys the typical wrong of the crime (vertyptes Unrecht, typischer Unrechtsgehalt).9 The definition of a crime is composed of constitutive elements only. Every element is an essential building 4

For various contributions on the core wrong of the crime of aggression, see Dannenbaum 2017; Dannenbaum 2018, Chapter 3; May 2008, pp. 222 et seq.; Mégret 2017; Redaelli 2020. 5 The undefined crime of aggression was not implemented at that time. 6 See Kreß 2000, pp. 14 et seq.; Werle 2000, pp. 756 et seq.; Werle 2001, p. 886. See also the aim of the German implementation to better capture the specific wrong of the core crimes in Deutscher Bundestag 2002, p. 12. 7 See Kreß 2000, pp. 14 et seq.; Werle 2000, pp. 756 et seq. For a similar assessment, see Ferdinandusse 2005, pp. 30 et seq.; Ferdinandusse 2009, pp. 729 et seq.; Jescheck 1953; Kreß 2003, pp. 14 et seq. 8 See Kreß 2000, pp. 14 et seq.; Werle 2000, pp. 756 et seq. 9 See Jescheck and Weigend 1996, pp. 245 et seq.; Rengier 2020, para 1; Roxin 2006, pp. 284 et seq.

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block. The complex 25-line definition in Article 8bis of the ICC Statute, however, makes it difficult to grasp the essence of the crime of aggression. The “general theory of crimes under international law”10 helps to give structure to the definition. It distinguishes, for example, the material and mental elements of a crime (actus reus and mens rea).11 The actus reus of the crime of aggression under Article 8bis of the ICC Statute essentially consists of the individual conduct of “planning, preparation, initiation or execution” and the State “act of aggression”. The latter requires a violation of the UN Charter of a certain degree.12 It must be a “manifest” violation due to the “character, gravity and scale” of the act of aggression.13 Perpetrators can only be those who fulfill the leadership clause, they must be “in a position effectively to exercise control over or to direct the political or military action of a State”.14 A further normative reduction of the actus reus could be achieved by focusing on the so-called “international element”. This constitutive element is of particular importance for crimes under international law. It lends them their international character.15 The “international element” is what differentiates ordinary crimes from crimes under international law, such as “murder” under ordinary criminal law from “murder” as a crime against humanity. Then, the “international element” could be perceived as a reflection of the “core wrong” of an ICC Statute crime. The “international element” was used by German scholars to narrow down the definition of crimes against humanity to its core wrong, namely the violation of human rights as part of a “widespread or systematic attack directed against any civilian population”.16 With respect to the crime of aggression, however, it is difficult to proceed with this traditional identification. The crime of aggression has a different structure. It does not have an underlying individual act which constitutes a crime under ordinary criminal law and amounts to a crime under international law if combined with the “international element”. The crime of aggression has an underlying State act of aggression, which implies the use of armed force by a State in violation of the UN Charter.17 The “international element” of the crime of aggression overlaps. It requires the “manifest” violation of the UN Charter by the “character, gravity and scale” of the act of aggression.18 The isolated reading of the “international element”, namely of the attribute of “manifest” and the qualifiers “character”, “gravity” and “scale”, would make little sense. The overlapping part could be perceived as the core wrong, which

10

Werle and Jeßberger 2020a, paras 531 et seq. See Ambos 2021, pp. 157 et seq.; Werle and Jeßberger 2020a, paras 540 et seq. 12 Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter). 13 See ICC Statute, Article 8bis(1). 14 See ICC Statute, Article 8bis(1). 15 Werle and Jeßberger 2020a, para 118. 16 Ibid., para 119. See also Kreß 2000, p. 14. 17 See ICC Statute, Article 8bis(2). 18 See ICC Statute, Article 8bis(1). 11

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is the use of armed force in violation of the UN Charter.19 However, the violation of the prohibition of the use of force is a necessary but not a sufficient condition for the crime of aggression. It is the “manifest” nature of the violation, the “character”, “gravity” and “scale” of the act of aggression, which separates the unlawful from the criminal use of armed force. Hence, the analysis of the core wrong of the crime of aggression can build on the wrong committed by the unlawful use of armed force. In addition, it needs to put emphasis on the “manifest” threshold and its three qualifiers, which are required for the criminal use of armed force.

3.2.2 The Theory on Protected Legal Interests (Rechtsgüterlehre) To ensure domestic types of criminal offenses can be compared in Chap. 4, it is useful to identify the core wrong of the crime of aggression by resorting to methods used under domestic law. This brings us to the German theory on the protected legal interests (Rechtsgüterlehre).20 Maurach and Zipf describe the protected legal interest as the “material core” of any criminal norm.21 The theory on protected legal interests conceptualizes a crime by its telos or purpose. It identifies the interests the norm aims to protect. The theory was originally constructed to prevent overcriminalization by requiring the legislature to identify the legal interest that a new criminal provision aims to protect.22 Although the theory has been criticized for being too imprecise to fulfill its original function,23 it still serves its “descriptive”24 function to conceptualize any crime by its protected legal interests. This became apparent, for example, when the German Supreme Court integrated considerations on the “protected legal interests” to describe the core wrong of genocide in comparison to murder and criminal assault.25 Literature on the core wrong 19

See in comparison Article 8bis(1) and Article 8bis(2) of the ICC Statute. In the following, the term “protected legal interest” shall be used for the German notion of Rechtsgüter. On the doctrine of the protected legal interests, see Jescheck and Weigend 1996, pp. 256 et seq.; Roxin 2006, pp. 13 et seq. For an English contribution and a juxtaposition with the common law concept of harm to others, see Ambos 2015; Peršak 2007, pp. 104 et seq. 21 Maurach and Zipf 1992, p. 270. 22 Jakobs 1991, p. 40; Roxin 2006, pp. 16 et seq. For an English contribution, see Ambos 2021, pp. 108 et seq. With regard to “the most serious crimes of concern to the international community as a whole”, this critical function is of minor relevance. 23 The is no universal agreement on what constitute a “protected legal interest”. For an overview of the various definitions and a historical development, see Jescheck and Weigend 1996, p. 257; Maurach and Zipf 1992, pp. 266 et seq.; Roxin 2006, pp. 14 et seq.; Suhr 1990, pp. 304 et seq. For the criticism, see also Ambos 2021, pp. 108 et seq.; Hörnle 2014, pp. 686 et seq.; Kudlich 2016, para 5. 24 Heinze 2018, p. 935. 25 It found that the crime of genocide, unlike homicide or criminal assault, is not a criminal offense that serves the protection of individual rights, see German Federal Court of Justice, Judgment, 30 20

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of the crime of aggression also emphasizes its protected legal interests. Mégret, for example, structured his analysis of the “specific evil” of aggression by consecutively assessing whether aggression is a crime against the State and its sovereignty, a crime against peace or a crime against human rights.26 Ambos and Safferling explain the crime of aggression by first providing an overview of the protected legal interests.27

3.2.3 Protected Legal Interests and Type of Attack The protected legal interests cannot fully capture the “core wrong” of a crime, neither under domestic nor international law.28 According to Jakobs, many norms cannot be explained if their purpose is only described by the protected legal interest.29 Legal interests are not protected from any attack by anyone but sometimes only from certain attacks launched by certain persons.30 The need for more criteria to describe the core wrong becomes particularly apparent regarding crimes under international law. As the Preamble of the ICC Statute suggests, all crimes under international law have peace, security and the well-being of the world as their overarching protected legal interests.31 This, however, did not prompt the drafters of the ICC Statute to adopt a general “crime against peace, security and the well-being of the world”.32 As Werle and Jeßberger explain, these interests are protected “against attacks from various directions”.33 The criminalization of genocide, for example, serves to protect world peace from an intentional attack on the existence of a particular group.34 According to Werle and Jeßberger, the provision on crimes against humanity seeks to protect peace, security and the well-being of the world from a systematic or widespread violation of the fundamental April 1999, BGHSt 45, 64. See also German Federal Court of Justice, Decision, 3 February 2021, AK 50/20, para 48. 26 Mégret 2017. 27 Ambos 2022, pp. 221 et seq.; Safferling 2011, § 6 mn. 174 et seq. For other contributions on the legal interests of the crime of aggression, see Kreß et al. 2017, pp. 418 et seq.; Pobjie 2017, pp. 820 et seq. 28 Jakobs 1991, p. 41. 29 Ibid. 30 Similarly, Jescheck and Weigend 1996, p. 240; Roxin and Greco 2020, p. 25 fn. 50. See, for example, alternative conviction (the so-called “Wahlfeststellung”) under German law is possible in case these offenses share the “core wrong”. The “core wrong” is understood as being composed of the violation or endangerment of the protected legal interest and, as some additionally claim, the modalities of bringing about the violation or endangerment, as well as the motivation of the defendant. See Frister 2017, para 59. 31 See ICC Statute, preambular para 4. 32 Such a broad label without further information on the nature of the wrongdoing would run counter to the principle of fair labelling, see Ashworth and Horder 2013, pp. 77 et seq. 33 Werle and Jeßberger 2020a, para 121. 34 Ibid.

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human rights of the civilian population.35 The provisions on war crimes minimize the effects of armed conflicts on peace.36 With respect to the crime of aggression, they note that “[a]rmed conflicts generally disrupt world peace”.37 The need to identify the type of attack against the protected legal interests can also be inferred from May’s considerations. He contends: “One normative difficulty is that if what makes war immoral is the killing of people, then all wars are immoral and there is no relevant moral distinction between aggressive wars and defensive wars. If one wants to maintain a distinction of this sort and punish people for waging aggressive wars but not for waging defensive wars, focusing on killing alone will not work.”38 Given that the name of a crime of aggression carries the modality of “aggressive”, exploring the wrong of “aggressive” use of force is essential for contouring the core wrong. To conclude, the core wrong of the crime of aggression cannot be identified with the traditional focus on the “international element”. An exclusive analysis of the necessary but insufficient violation of the prohibition of the use of force would also not serve the purpose of this chapter. To set the frame of reference for the analysis of domestic types of criminal offenses in Chap. 4, the core wrong of the crime of aggression will build on domestic methods. The analysis will start with identifying the protected legal interests. It then explores the type of attack from which these interests are protected. The basis of the analysis is the definition of Article 8bis of the ICC Statute. It will be assessed in line with the general methods of treaty interpretation whereby the wording of the provision is the first reference point, followed by its context, object and purpose.39 The underlying prohibition of the use of force can either be considered in a contextual40 interpretation of Article 8bis of the ICC Statute or in light of its “object and purpose”,41 whenever a literal interpretation does not suffice. Werle and Jeßberger call this “verbotsnormkonforme Auslegung”.42

35

Ibid. Ibid. 37 Ibid. 38 May 2008, p. 6. 39 See Dörr 2012; Gardiner 2012, paras 38 et seq. 40 Methodologically, conclusions from the similar sounding Article 2(4) UN Charter may be drawn on the basis of Article 31(3)(c) VCLT, assuming that Article 2(4) UN Charter is one of the “relevant rules of international law”. 41 Assuming on the basis of Article 31(1) of the VCLT that Article 8bis ICC Statute has the “object and purpose” to protect the core prohibition of the use of force as contained in Article 2(4) of the UN Charter. 42 See Werle and Jeßberger 2020b, para 230. It takes account of the prohibitions in international law to which a penal norm can be ascribed. 36

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3.3 State Sovereignty as a Protected Legal Interest One main aspect of the core wrong of the crime of aggression is the legal interests it seeks to protect. The crime of aggression is ultimately geared at the protection of the truly international legal interest of “international peace” (Sect. 3.4) and is increasingly discussed as a crime which also protects “individual interests” (Sect. 3.5).43 However, the traditional view is to perceive it as a crime that protects State sovereignty.44 In their analysis of the specificity of the crime of aggression, Reisinger Coracini and Wrange note that the State-centric formulation of Article 8bis of the ICC Statute often leads to the assumption “that compared with the other categories of core crimes under the Court’s jurisdiction, the crime of aggression is less concerned with the protection of individual rights than with the protection of State rights”.45 The link to State sovereignty has given the crime of aggression all sorts of names, such as a “cold crime”,46 a “political crime”,47 a crime which plays exclusively at the “macro level”48 and a crime which “yields an abstract harm”.49

3.3.1 The State Interests Mentioned in Article 8bis(2) of the ICC Statute If the wording of a criminal norm is the first point of reference to identify the protected legal interests, the explicitly mentioned interests of “sovereignty, territorial integrity and political independence” and their attribution to “another State” in Article 8bis(2) of the ICC Statute suggest that the crime of aggression has a strong focus on State interests.50

43

For an analysis of what makes up the wrong of aggression, see also Creegan 2012; Dannenbaum 2017; Dannenbaum 2018, Chapter 3; Drumbl 2009, p. 306; May 2008, pp. 222 et seq.; McDougall 2021, pp. 51 et seq.; Mégret 2017; Redaelli 2020; Stahn 2019, pp. 95 et seq. For the related discussion of who is the victim of aggression, see Pobjie 2017; Wong 2016, Chapter V. 44 In that regard, see Creegan 2012; Cryer et al. 2019, p. 297; Kahn 2008, p. 55; Luban 1980, p. 164; Pobjie 2017, p. 821; Stahn 2010, pp. 876 et seq.; Teitel 2013; Zimmermann and Freiburg-Braun 2021, para 33. For a discussion of the traditional view, see Dannenbaum 2017, pp. 1254 et seq.; Mégret 2017, pp. 1402 et seq.; Ohlin 2017, p. 1461; Redaelli 2020, pp. 610 et seq. 45 Reisinger Coracini and Wrange 2017, p. 318. 46 Mégret 2017, p. 1406; Redaelli 2020, p. 636. 47 See Ambos 2022, p. 232; Creegan 2012, p. 62. 48 For a critical view, see Dannenbaum 2018, p. 76. 49 Creegan 2012, p. 59. For a critical view, see Ruys 2017, p. 33. 50 Pobjie 2017, p. 821.

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In international law, sovereignty means the international independence of a State, combined with the right and power to regulate internal affairs without foreign dictation.51 The sovereignty of States has several dimensions, such as political independence, territorial integrity and immunity of the sovereign State.52 Sovereignty can thus be understood as the umbrella term among the interests mentioned in Article 8bis(2) of the ICC Statute.53 Territorial integrity refers to the physical control over a territory, while political independence stands for the existence of an independent government.54 The State-centric language of Article 8bis of the ICC Statute, however, could be downplayed by claiming that the mentioned State attributes are only the objects that need to be attacked to violate the collective interest of international peace. This is asserted by German scholars regarding criminal offenses that seek to protect a vague or collective legal interest. In the definition of these offenses, the legislature tends to name a specific object of the punishable action performed (object of action or Handlungsobjekt) without perceiving it as the protected legal interest.55 However, sovereignty, territorial integrity and political independence are not tangible objects. They are defined as abstract ideas. The State territory, which may be bombed during the crime of aggression, can be perceived as the attacked object. By contrast, the sovereignty, territorial integrity and political independence of the State are intangible. They are ideas that better fit into the category of protected legal interests.

3.3.2 The Underlying Acts Against Another State in Article 8bis(2) of the ICC Statute Besides the State interests mentioned in the generic definition of the underlying “act of aggression”, the enumeration of possible acts of aggression in litterae (a) to (g) of Article 8bis(2) of the ICC Statute reinforces the State-centric conceptualization of aggression.56 While Article 7, for example, lists acts against individuals that may amount to crimes against humanity, Article 8bis(2) of the ICC Statute lists examples of acts of aggression directed against States that may amount to crimes of aggression.57 The majority of the listed acts explicitly require a connection between the act of the aggressor State and the territory sensu stricto or sensu lato of the 51

Van der Vyver 2013, p. 383. Similarly, Tomuschat 2001, pp. 164 et seq. Van der Vyver 2013, p. 383. See also Peters 2009, p. 516. 53 Similarly, Stone 1977, pp. 103 et seq. 54 Bruha 1980, p. 118 fn. 105; Stone 1977, p. 103. 55 See Sieber 1980, pp. 255 et seq. See also Hefendehl 2002, pp. 39 et seq. On the distinction between the protected legal interest and the object of action, see also Amelung 1995, pp. 198 et seq.; Suhr 1990; Vormbaum and Bohlander 2013, pp. 146 et seq. 56 See also Pobjie 2017, p. 821; Reisinger Coracini and Wrange 2017, p. 318. On the understanding of the listed acts of aggression, see, e.g., Bruha 2017, pp. 161 et seq.; Kreß 2017, pp. 438 et seq. 57 See also Reisinger Coracini and Wrange 2017, p. 318. 52

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aggressed State. Litterae (a), (b), and (e) deal with the invasion, occupation, annexation, bombardment or trans-consensual use of territory of another State. Litterae (c) and (d) describe acts that are directed against the outer ends of the aggressed State’s territory (“ports or coasts”) or against the “quasi-territorial positions”58 of a State abroad (“land, sea or air forces, or marine and air fleets”). The territory of the other State can be used as the tangible object of the punishable action to violate the legal interest of territorial integrity or State sovereignty. The acts of aggression listed in litterae (f) and (g) are interpreted as indirectly referring to State territory.59 In addition, the acts still need to be directed “against another [or a third] State”. Hence, the interests most obviously protected by the crime of aggression are those of the State.60

3.3.3 The Need to Move Beyond the Bilateral Sphere To conclude, both the language of the generic definition of the “act of aggression” as well as the listed acts of aggression in Article 8bis(2) of the ICC Statute depict the crime as one that protects State interests. A violation of legal interests in the bilateral sphere, however, would not suffice to for aggression to be characterized as a crime under international law. To benefit from the high legitimacy of international criminal law, crimes need a link to a “truly international legal interest”,61 such as those mentioned in the Preamble of the ICC Statute. These are “peace, security and well-being of the world”.62

3.4 International Peace as a Protected Legal Interest There is a tendency to name “international peace” as a truly international interest the criminalization of aggression aims to protect.63 Bassiouni begins his “value ranking

58

Beyerlin 1977, p. 221: “quasi-territoriale Außenpositionen”; Sayapin 2014, p. 268. Bruha 1980, p. 117. 60 See also Pobjie 2017, p. 821. 61 See Safferling 2011, § 6 mn. 174; Mégret 2017, p. 1414. In general terms Ambos 2021, pp. 113 et seq. 62 For a different explanation why the crime of aggression primarily protects something else than sovereignty, exemplified by the “wars by duel”, see Mégret 2017, pp. 1411 et seq. See also Luban 1980, p. 161. 63 Albeit with some linguistic variations, see, e.g., Ambos 2022, p. 221; Bassiouni 2013, p. 227; Bock 2010, p. 117; Safferling 2011, § 6 mn. 174; Stahn 2019, pp. 95 et seq.; Werle and Jeßberger 2020a, para 121. 59

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of international crimes” with aggression as the “one most harmful to peace and security” under the heading “Protection of Peace”.64 Similarly, Jeßberger and Geneuss consider that “the crime of aggression—as ‘crime against peace’—is more directly linked than the other crimes to peace”.65 To explore this protective dimension,66 it is necessary to define “international peace”.

3.4.1 The Multifaceted Concept of Peace “Peace” is considered to be a multifaceted concept which lacks a clear definition.67 Traditionally, international law has taken a binary view on peace. This can be traced back to Grotius who juxtaposed peace and war in his seminal work with the telling title “De Jure Belli ac Pacis” (On the Law of War and Peace).68 In that sense, “peace” is negatively defined as the “absence of war or armed conflict”.69 It traditionally only referred to interstate relations.70 “Peace” is now increasingly understood as including the intrastate level.71 Under the UN Charter, for example, the concept of “threat to the peace” in Article 39 was originally understood as referring mainly to threats of interstate conflicts,72 but the UN Security Council increasingly used its powers under Chapter 7 to react to internal conflicts.73 The traditionally interstate aspect of “peace” is closely related to the understanding of the attribute of “international”. Kelsen used “international” as an antonym to “internal” peace, meaning the peace within one and the same State.74 A similar distinction is made by German scholars who discussed the crime of aggressive war as a crime against “external peace”.75 This was contrasted to crimes against “internal peace” in the sense of “political order”.76 In international law, however, the addition of “international” to the notion of peace is no longer taken sensu stricto to mark the difference to “internal”, “intrastate”, or “domestic” peace. “International peace” is 64

Followed by war crimes under the category of “Regulation of Armed Conflicts” and crimes against humanity as well as genocide listed under “Protection of Fundamental Human Rights”, see Bassiouni 2013, pp. 229 et seq. 65 Jeßberger and Geneuss 2021, p. 298. See also Atadjanov 2019, p. 304. 66 For a discussion of aggression as a crime against peace, see Mégret 2017, pp. 1414 et seq. 67 Bailliet and Mujezinovi´ c Larsen 2015; Jeßberger and Geneuss 2021, p. 295; Redaelli 2020, p. 619; de Zayas 2015, p. 97. 68 Grotius 2012. See Bailliet and Mujezinovi´ c Larsen 2015, p. 2; Redaelli 2020, p. 625. 69 Bailliet and Mujezinovi´ c Larsen 2015, p. 2; Tehindrazanarivelo and Kolb 2006, para 12. For the positive definition of peace, see Galtung 1996, p. 14; Jeßberger and Geneuss 2021, p. 295. 70 Jeßberger and Geneuss 2021, p. 295; Kelsen 2000, p. 19. 71 Bailliet and Mujezinovi´ c Larsen 2015, p. 2. 72 Abbott 2002, pp. 284 et seq. 73 Krisch 2012a, para 19. 74 Kelsen 2000, p. 19. 75 See Otto 2002, pp. 332 et seq.; Schroeder 1969. 76 E.g., the public incitement to commit offenses, see Section 111 of the German Criminal Code.

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increasingly understood in international law as including the intrastate level,77 which is also reflected in the practice of the UN Security Council.78 However, the crime of aggression is a crime against negative peace in the traditional sense as the commission of aggression ends the absence of inter-state violence, or even to the absence of armed conflict.79

3.4.2 The Preambular Presumption of the ICC Statute: Peace as an Overarching Protected Legal Interest A first indication of the protection of international peace by the crime of aggression can be found in the Preamble of the ICC Statute. Preambular paragraph 3 of the ICC Statute strongly suggests “peace, security and [the] well-being of the world” are the overarching collective legal interests protected by the crimes included in the ICC Statute.80 The crime of aggression, like genocide, crimes against humanity and war crimes, is thus a crime against these fundamental legal interests of the international community.81 However, this general preambular presumption requires validation.

3.4.3 The Underlying Prohibition of the Use of Force as a Means to Protect Peace The preambular presumption of perceiving peace as a protected interest is not explicitly affirmed in the wording of Article 8bis of the ICC Statute. This provision only mentions the State interests of “sovereignty”, “territorial integrity”, and “political independence”. Nonetheless, the protection of international peace corresponds to the conceptualization of the crime of aggression as the response of criminal law to violations of the prohibition of the use of force. This is why the crime of aggression shares the prohibition’s purpose to maintain peace. As Kreß describes the relationship, “the object and purpose of article 8 bis of the Rome Statute…is to protect the core of the prohibition of the use of force”.82 The crime of aggression is thus the secondary norm which criminalizes and attaches punishment to certain violations of the primary norm, the prohibition of the use of

77

Bailliet and Mujezinovi´c Larsen 2015, p. 2. Krisch 2012b, para 8. 79 Perceiving aggression as a breach of negative peace is quite unambiguously asserted in Article 1(1) of the UN Charter which equates aggression with “other breaches of the peace”. 80 These interests cannot be strictly separated from one another, see Werle and Jeßberger 2020a, para 106. 81 See Triffterer et al. 2021, para 9; Werle and Jeßberger 2020a, para 106. 82 Kreß 2017, p. 418. Similarly, Neubacher 2005, p. 447; Safferling 2011, § 6 mn. 176. 78

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force under the UN Charter.83 This interplay between primary norms under international law and secondary norms under international criminal law can also be observed with respect to other crimes under international law, such as war crimes. They constitute the response of criminal law to certain violations of the primary norms under ius in bello.84 The structural interplay allows a minore ad maius conclusions to be drawn from the protective scope of the prohibition of the use of force to the protective scope of the criminalization of certain violations of the primary prohibition.85 The structural interplay is most evident in the wording of Article 8bis(2) of the ICC Statute. It is almost identical to the prohibition of the use of force of Article 2(4) of the UN Charter. It defines an act of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. There are deviations from the wording of Article 2(4) of the UN Charter, namely the omission of “threat of force”, the limitation to “armed” force, the required inconsistency with the Charter of the United Nations in its entirety instead of the inconsistency with the “Purposes of the United Nations” and the addition of “sovereignty”.86 Unlike the primary norm of the prohibition of the use of force, a crime of aggression does not require a simple but a “manifest” violation of the UN Charter. This may modify its protective dimension. Regardless, the deviations are unable to rebut the mirroring effect when reading both articles. The crime of aggression is based on a violation of the prohibition of the use of force. This allows inferences from the latter’s range of protected interests. Reducing the purpose of the prohibition of the use of force under Article 2(4) of the UN Charter to the exclusive protection of explicitly mentioned State interests does not correspond to its overall understanding. Despite its silence on peace, Article 2(4) of the UN Charter has been labelled as “the corner stone of peace in the Charter”,87 not as the cornerstone of State interests. The reference to territorial integrity and political independence in Article 2(4) of the UN Charter should not distract the attention from the words “or in any other manner inconsistent with the Purposes of the United Nations”. The “overriding purpose”88 mentioned in Article 1 of the UN Charter is to “maintain international peace and security”. The addition of “in any other manner inconsistent with the Charter of the United Nations” suggests a subordination of the protection of State interests to the ultimate purpose of protecting peace. This is also affirmed by the rejection of literal interpretations of Article 2(4) 83

On the notion of primary and secondary rules, Gaeta et al. 2020, p. 249. For the link between the crime of aggression and the primary rule, see also Werle 2010, pp. 1222 et seq. 84 Werle 2010, pp. 1225 et seq.; Werle and Jeßberger 2020a, para 1180. 85 This rule of interpretation which takes account of the prohibition in international law to which a penal norm can be ascribed is what Werle and Jeßberger call “verbotsnormkonforme Auslegung”, see Werle and Jeßberger 2020b, para 230. 86 For all deviations, see Dinstein 2017, p. 290; Zimmermann and Freiburg-Braun 2021, paras 94-98. 87 Waldock 1952, p. 492. See also Randelzhofer and Dörr 2012, para 12. 88 See Malanczuk and Akehurst 2002, p. 221 (“the overriding purpose”); Randelzhofer and Dörr 2012, para 38 (“the paramount purpose”).

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of the UN Charter that claim the lawfulness of the use of force provided it is not aimed “against the territorial integrity or political independence of any State”.89 Placing the emphasis of the prohibition of the use of force on the protection of “international peace” is also more consistent with the raison d’être of the United Nations. It was created “to save succeeding generations from the scourge of war” and to “live together in peace with one another as good neighbors”.90 The founding treaty, the UN Charter, installed a “system of war prevention” in which the prohibition of the use of force is “a major element”.91 Hence, the peace-maintaining and warpreventing character better describes the function of the United Nations and the prohibition of the use of force. Given that the absent enumeration of international peace in Article 2(4) of the UN Charter did not prevent its understanding as the cornerstone of peace, the same silence in Article 8bis(2) of the ICC Statute does not prevent its understanding as a crime with the same purpose. The secondary norm shares the ultimate purpose pursued by the primary norm to protect international peace. It is not questioned that State interests are also part and parcel of the protective dimension of the crime of aggression. The language of Article 8bis of the ICC Statute “in any other manner inconsistent with the Charter of the United Nations” and the perception of the primary norm of Article 2(4) of the UN Charter as the “cornerstone of peace” suggest a subordination of the protection of State interests to the ultimate purpose to protect the truly international interest of peace.92

3.4.4 The Crime of Aggression as the Post-Nuremberg Version of the “Crime Against Peace” The protection of peace was more evident before the change of name from “crime against peace” to “crime of aggression”. Despite major linguistic and moderate substantive deviations from Nuremberg’s “crime against peace”,93 the “crime of aggression” as defined in Article 8bis of the ICC Statute shares the general idea of its predecessor to protect peace. The Charter and the judgment of the International Military Tribunal at Nuremberg lay a foundation for perceiving international peace as the interest protected by the criminalization of aggression. A first indication is the chosen label of the “crime against peace”94 under the IMT Charter instead of following Jackson’s proposal to 89

Malanczuk and Akehurst 2002, p. 221. See UN Charter, Preamble. See also Dinstein 2017, para 257 91 See Randelzhofer and Dörr 2012, para 2. 92 See also Kreß 2017, p. 419. 93 See, in detail, Werle and Jeßberger 2020a, paras 1577 et seq. 94 See Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union 90

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call it “crime of war”.95 The fact that “crime against peace” and “crime of war” were the two labels at the negotiating table is also consistent with the negative definition of peace as an antonym to war or armed conflict. The “crime against peace” criminalizes a conduct that seems to put an end to the absence of armed conflict. Indeed, according to the International Committee of the Red Cross, an “international armed conflict” occurs if a State has “recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation”.96 Understood in that way, an “armed conflict” and a violation of peace seem to automatically result from a crime of aggression which requires the “use of armed force” against another State.97 The protection of peace and the crime’s “world order shattering potential”98 is stressed by the International Military Tribunal at Nuremberg. It states that aggressive wars are “charges of the utmost gravity” and war is “essentially an evil thing”, as its “consequences are not confined to the belligerent States alone but affect the whole world.”99 Hence, the wrong of the crime is not the mere violation of sovereignty.100 As a crime under international law, it transcends the relationship of the belligerent States. It protects a truly international, supra-sovereign interest, such as international peace.101 Thus, the crime of aggression is a crime which protects international peace. This is generally presumed in the Preamble of the ICC Statute. It is affirmed by the interpretation of the crime of aggression in accordance with the protective scope of the prohibition of the use of force and suggested by its predecessor of the “crime against peace” from the Nuremberg trials.

3.5 Individual Interests as Protected Legal Interests Beyond State sovereignty and international peace, individual interests may fall under the range of protected interests of the crime of aggression. This better aligns with

of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter), Article 6 (a). 95 See Jackson 1945, pp. 416 et seq. 96 See the interpretation of Common Article 2 of the 1949 Geneva Conventions, in ICRC 2008, p. 1. See also Kleffner 2021, Section 3.02, para. 1 whereby the law of international armed conflict applies from the first moment that force is used by one State against another State (the so-called “first-shot” theory). 97 In comparison, see the more restricted understanding of “breach of the peace” under Article 39 UN Charter, Krisch 2012a, paras 40 et seq. 98 See Mégret 2017, p. 1414. 99 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. 100 Similarly, Jeßberger and Geneuss 2021, pp. 298 (“It was made explicit by the IMT that aggression is not only an attack against another state’s sovereignty, but also affects world peace”). 101 Safferling 2011, § 6 mn. 174; see also Mégret 2017, p. 1414.

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the “humanization of international law”,102 which has shifted the focus of international law from the protection of sovereignty to the protection of human rights. In a climate of humanized international law where the “s”-word “has not aged well”,103 a crime that is traditionally perceived as protecting sovereignty creates questions close to an identity crisis. This has brought scholars to reconceptualize the crime of aggression by building a bridge to individual interests. They contrast with the classical approach which does not mention individual interests as those protected by the crime of aggression.104 The classical silence on individual interests is not surprising for a crime which is based on a violation of ius ad bellum and which does not explicitly require human casualties.105 As long as the International Criminal Court has not yet produced case law on the definition of Article 8bis of the ICC Statute, its vague wording allows a description of the crime of aggression that includes the protection of individual interests without engaging in a de lege ferenda reconceptualization.

3.5.1 The Protection of Individual Interests by Crimes Under International Law? Recent attempts to reconceptualize the understanding of aggression in light of individual interests are reminiscent of the reluctance among German scholars towards collective interests as a legitimate basis of criminalization.106 However, they seem to conflict with the reverse attempts under international criminal law to de-emphasize the protection of individual interests to do justice to the classification as “crimes under international law”.107 The reluctance towards collective interests is prevalent among proponents of the so-called personale Rechtsgutslehre under German law. To avoid overcriminalization, the legislative branch should always try to preserve a link to personal rights and interests instead of referring to a vague collective interest.108 The personale Rechtsgutslehre accepts criminal offenses with collective interests if they ultimately seek to protect personal interests.109 The need to conceptualize criminal offenses with a link to individual interests is famously debated regarding offenses against 102

On the humanization of international law, see, in detail, Meron 2006; Teitel 2013. See also Henkin 2000; Peltonen 2019; Tomuschat 2001, pp. 161 et seq. 103 Henkin 2000, p. 1. 104 See, e.g., Ambos 2022, pp. 221 et seq.; Bassiouni 2013, p. 227; Safferling 2011, § 6 mn. 174; Werle and Jeßberger 2020a, para 121. For a contrary view, see Stahn 2019, pp. 95 et seq. 105 In that regard, see Boeving 2005, p. 588; Pobjie 2017, p. 821. 106 For a critical view on collective interests, see Roxin 2006, p. 17. The critique is voiced by the so-called “personale Rechtsgutslehre”, see Greco 2011, p. 202; Hassemer 1989. 107 Safferling 2011, §6 mn. 55. For an analysis of whether crimes under international law can protect individual interests, see Ambos 2018, §5 mn. 3 fn. 37. 108 Greco 2011, pp. 200 et seq.; Hassemer 1989; Nuotio 2011, p. 249. 109 Großmann 2016, pp. 250; Hassemer and Neumann 2017, para 132. For a discussion in English, see Nuotio 2011, p. 249.

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the environment. This debate could be helpful for the parallel discussion on the crime of aggression. The anthropocentric approach claims that the environment is only protected to ensure its ultimate function of providing the foundation for human life.110 It perceives offenses against the environment as offenses that endanger individual interests.111 At the other extreme, the purely ecological and supra-individual approach considers the protection of the environment as an end in itself and the protection of individual interests as a mere reflex.112 A compromise between these two extremes is the combined ecological-anthropocentric approach.113 It does not perceive the protection of the environment as an end in itself but rationalizes the protection of its various aspects (water, air, soil, fauna, flora) in reference to the environment’s ultimate function of providing the foundation for human life. The environment is understood as a separate protected interest, but its protection also precedes the protection of essential individual interests.114 Applied mutatis mutandis to the crime of aggression, the humanization of international law could reject the protection of sovereignty as an end in itself and establish an anthropocentric understanding of the crime of aggression. Sovereignty would only be protected in its ultimate function to protect individual rights. A combined approach, in contrast, would interpret aggression as a crime that protects sovereignty in its various aspects (e.g., territorial integrity and political independence) and emphasize the ultimate function of a sovereign State to establish the preconditions for the enjoyment of individual interests. As discussed in Sect. 3.5.3, sovereignty is understood by some scholars in reference to the rights of those that live within the State. Like the proponents of the personale Rechtsgutslehre in the domestic discussion, those requiring an explanation of the crime of aggression in reference to human rights are uncomfortable with legitimatizing criminal responsibility based on a violation of collective interests. According to May, the “mere assaulting of sovereignty does not have the same level of seriousness” as the other core crimes.115 Thus, although the critique of the personale Rechtsgutslehre and of humanized international law address different contexts, they both stress the importance of a link to the individual to legitimatize criminalization. In international criminal law, however, there are also reverse attempts to deemphasize the protection of individual interests to do justice to the classification as “crimes under international law”.116 According to Safferling, for example, genocide, 110

For further information, Rengier 1990, p. 2507; Saliger 2012, pp. 12 et seq.; Schmitz 2019, para

20. 111 112

Hassemer and Neumann 2017, para 137. In detail, see Rengier 1990, pp. 2506 et seq.; Saliger 2012, pp. 14 et seq.; Schmitz 2019, para

23. 113

In detail, see Heger 2014, para 7; Heine and Schittenhelm 2019, para 8; Saliger 2016, para 11; Schall 2016, para 22. 114 Großmann 2016, p. 109; Heger 2014, para 7; Saliger 2012, pp. 18 et seq. 115 May 2008, p. 4; May 2017, pp. 279 et seq. 116 On the unclear relationship between individual and collective interests when it comes to crimes under international law, see Zimmermann 2015, pp. 65 et seq.

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crimes against humanity and war crimes can only protect collective interests.117 This is because international criminal law derives its justification from supra-individual interests, namely from collective interests of groups and States.118 This reasoning stands in striking contrast to the critique of the domestic personale Rechtsgutslehre towards collective interests. The legitimacy of crimes under international law is not questioned but established by being based on collective interests. Safferling describes the protection of individual interests as a “mere reflex” but not the actual purpose of the criminalization of genocide or crimes against humanity.119 In contrast to this exclusively collective approach, other scholars follow a combined individualisticcollective approach. The protected legal interests of crimes under international law are “primarily of a supra-individual, collective, or complex nature”, which does not exclude, however, the additional protection of individual interests.120 Although this combined approach is more generous than an exclusively collective one, it is remarkable that proponents of the combined approach tend to dilute the protection of individual interests by crimes classified as “crimes under international law”. They are said to protect the individual “only secondarily”,121 “indirectly”122 or “only in a subsidiary manner”.123 If the protection of supra-individual interests is what primarily characterizes and legitimatizes crimes under international law, the recent attempts to emphasize the individual protective dimension of the crime of aggression to raise its legitimacy appear odd. The crime of aggression is the crime with the most evident link to the supra-individual interest of peace.124 Attempts to emphasize the human dimension of aggression, however, seem to be a response to the humanization of international law.

3.5.2 The Humanization of International Law The “humanization” of international law describes how human rights law has shifted the focus of general international law from being “State-centered to individualcentered”.125 The International Criminal Tribunal for the former Yugoslavia acknowledged this evolution in the Tadi´c case: “[A] State-sovereignty-oriented approach 117

Safferling 2011, §6 mn. 10, 55 and 127. Safferling 2011, §6 mn. 10, §4 mn. 65. 119 Safferling 2011, §6 mn. 10 and 55. See also Esser 2018, §20 mn. 6. In contrast, see Ambos 2022, pp. 3 et seq.; Kreß 2006, p. 465. 120 Ambos 2013, p. 66; Bock 2010, pp. 90 et seq., 97 et seq., 116 et seq.; Satzger 2012, §14 mn. 8, 50, 99; Werle and Jeßberger 2020a, paras 890 et seq., para 986; paras 1189 et seq. 121 On crimes against humanity, see Satzger 2012, §14 mn. 50. 122 On genocide, see Bock 2010, p. 92. 123 Reisinger Coracini and Wrange 2017, p. 318. 124 For similar concerns, see Reisinger Coracini and Wrange 2017, pp. 318 et seq. 125 See Meron 2006, Introduction. See also Dannenbaum 2018, pp. 93; Kahn 2000, pp. 5; Redaelli 2020, p. 612; Tomuschat 2001, p. 162. 118

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has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.”126 The humanization of international law has gained momentum after 1945. The end of World War II led to the Nuremberg trials with the “radical innovation”127 of holding individuals and not only States accountable for violations of international law.128 It also gave birth to the human rights movement.129 The promulgation of the Universal Declaration of Human Rights in 1948 was followed by many human rights treaties and declarations.130 This humanized other fields of law, such as the formerly known “law of armed conflict”, which was historically perceived as safeguarding primarily the interests of States.131 The humanization of the “law of armed conflict” is captured by the increasingly used notion of “international humanitarian law”,132 as well as the more human focus of the rules under the Geneva Conventions and the Additional Protocols.133 The human rights movement has led to a significant erosion of sovereignty. How a State behaves in its own territory or how a State treats its citizens is no longer its own business. It has become a matter of international concern.134 This is also reflected in the practice of the UN Security Council which increasingly used its powers to react to internal conflicts.135 The process of humanization has even led to assertions that sovereignty “is being ousted from its position as a Letztbegründung (first principle) of international law” and “should be seen to exist only in function of humanity”,136 which cumulated in discussions on the responsibility to protect.137 The traditional understanding of aggression as a crime with a focus on sovereignty appears inconsistent with contemporary humanized international law.138 Major human rights organizations remained neutral when States Parties of the International Criminal Court sought a definition of the crime of aggression, suggesting that aggression is not a human rights issue.139 Human Rights Watch did not use the 126

See ICTY (AC), Tadi´c, Decision, 2 October 1995, para 97. Teitel 2013, p. 75. 128 See Meron 2006, p. 2 who perceives the individual criminal responsibility as a shift from the state-to-state aspect of international humanitarian law. 129 See Henkin 2000, pp. 3 et seq.; Meron 2006, p. 6. 130 See Meron 2006, p. 6. 131 Ryngaert 2007, p. 438. 132 Meron 2006, p. 1. 133 Ibid., pp. 6 et seq. 134 Henkin 2000, p. 4. 135 See Krisch 2012a, para 19; Meron 2006, Chapter 8. 136 Peters 2009, p. 513. See also Dannenbaum 2018, pp. 93 et seq. (“sovereignty is at some level conditional on the state discharging its ‘responsibility to protect’ the basic human rights of those within its control”). 137 See International Commission on Intervention and State Sovereignty 2001. 138 Similarly, Dannenbaum 2018, p. 95; Mégret 2017, pp. 1444 et seq.; Redaelli 2020, p. 636. 139 Weisbord 2017, p. 1314. There seems to be some change after the Russian Invasion, see Amnesty International, Russia/Ukraine: Invasion of Ukraine is an Act of Aggression and Human Rights 127

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term aggression right after the brutal Russian invasion of Ukraine in 2022.140 Luban described the criminalization of aggression under the IMT Charter as “a major moral enemy of the human rights movement”.141 Ironically, however, the Nuremberg trials, which were significant in the humanization of international law,142 were also the trials that considered the crime of aggression as the “supreme international crime”.143 After Nuremberg, however, the focus of international criminal law shifted. The crime of aggression became less relevant144 while the other core crimes, with a more evident link to human suffering, gained in importance.145 The momentum created by World War II led to the adoption of the Genocide Convention in 1948146 and the Fourth Geneva Convention in 1949.147 In contrast, the task of defining the crime and the act of aggression remained unsolved over decades.148 The end of the Cold War permitted greater cooperation between the superpowers in the UN Security Council, which led to the creation of the ad hoc Tribunals for Rwanda and the former Yugoslavia.149 The crime of aggression was not inserted into the Statutes of the ad hoc Tribunals.150 In 1998, the International Criminal Court was established with jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression. However, the crime of aggression was not defined, nor were the conditions under which the Court should exercise jurisdiction over it. A placeholder postponing these outstanding tasks was inserted in Article 5(2) of the ICC Statute and the crime of aggression became a “crime in waiting”.151 At the Kampala Conference in 2010, States finally inserted a definition of the crime Catastrophe, statement of 1 March 2022: “Russia’s invasion of Ukraine is a manifest violation of the United Nations Charter and an act of aggression that is a crime under international law, said Amnesty International as it called for all those involved in this crime to be held accountable for those violations.”: https://www.amnesty.org/en/latest/news/2022/03/russia-ukraine-invasion-of-ukraineis-an-act-of-aggression-and-human-rights-catastrophe/. Accessed 15 September 2022. 140 It described it as a “full-scale military invasion of Ukraine” and drew attention to the “attacks in violation of the laws of war that may amount to war crimes”, see https://www.hrw.org/europe/ central-asia/ukraine. Accessed 15 September 2022. 141 Luban 1997, p. 341. 142 Teitel 2013, p. 77 See also Luban 1997, p. 341 (“Nuremberg is one of the founding moments of the modern human rights movement”). 143 See IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p 421. 144 Jeßberger 2017, pp. 297 et seq. See also Mégret 2018, p. 840. 145 On the marginalization of the crime of aggression, see also Hartig 2022. 146 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (Genocide Convention). 147 Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Geneva Convention IV). 148 For a definition of the state act of aggression, see UN General Assembly 1974, Annex. For the definition of the crime of aggression, see Article 8bis of the ICC Statute, as inserted in 2010. 149 See Meron 2006, p. 91. 150 For the reasons on not to include the crime of aggression, see Matheson and Scheffer 2016, p 187. 151 Jeßberger 2017, p. 299.

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of aggression and provisions on the conditions for the exercise of jurisdiction.152 In 2017, they decided to activate the jurisdiction.153 The activation decision might have severely limited the jurisdiction over the crime of aggression.154 These developments since World War II suggest that the focus of international criminal law shifted from the formerly known “supreme international crime”155 to those crimes with a more direct link to human suffering. This corresponds to the humanization of international law as a whole. The situation in Ukraine and the current inability of the International Criminal Court to prosecute the crime of aggression may perpetuate this shift. It might keep the focus of the international community on genocide, crimes against humanity and war crimes. The formal resurrection of the crime of aggression in 2010 poses the challenge of how to bring the crime, traditionally understood as an attack against sovereignty, into accordance with humanized international law. This may also help to address the recent indecisiveness of the international community to prosecute the crime of aggression committed against Ukraine in 2022. Bassiouni simply suggests to better direct the efforts toward “other international crimes, which are the outcome or consequence of aggression”.156 Other scholars have made different attempts to conceptualize the crime of aggression as a crime that also protects individual interests. The explanations of the human core of the crime of aggression are either based on an interpretation of “sovereignty” in relation to the rights of those living within the State (Sect. 3.5.3), on the interpretation of the “manifest” threshold of the crime of aggression which cannot be fulfilled without actual or likely harm for individual interests (Sect. 3.5.4) or on the understanding that the crime of aggression lowers the level of protection for individual interests by triggering international humanitarian law (Sect. 3.5.5).

3.5.3 Humanized Sovereignty: The Protection of State Sovereignty to Protect Rights of Those Living Within the State A first attempt to conceptualize the crime of aggression as a crime that also protects individual interests is made by those scholars who explain “sovereignty” in relation to the rights of those who live within the State.157 152

See Review Conference of the Rome Statute 2010. See ICC Assembly of States Parties 2017. 154 In detail, see Chap. 5, Sect. 5.4. 155 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. 156 Bassiouni 2018, p. 57. See also the statement made by the then British Minister of Foreign Affairs Truss in which she expressed her concerns that setting up an additional tribunal for prosecuting Russian leaders for the crime of aggression against Ukraine could divert resources away for the vital evidence collecting for war crimes: https://www.theguardian.com/world/2022/apr/ 29/uk-to-send-investigators-to-ukraine-to-gather-evidence-of-war-crimes-truss-says. Accessed 15 September 2022. 157 For a similar analysis, see Redaelli 2020, pp. 616 et seq. 153

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Walzer is a proponent of the traditional State-centric approach given that he argues that aggression challenges territorial integrity and political independence.158 However, Walzer builds a bridge to individual rights by adding that territorial integrity and political independence are rights that “belong to states, but they ultimately derive from the rights of individuals, and from them they take their force”.159 This is why he assumes that “[w]hen states are attacked, it is their members who are challenged, not only in their lives, but also in the sum of things they value most, including the political association they have made.”160 He explains this using a metaphorical contract whereby the “rights of states rest on the consent of their members”.161 Luban explicitly builds on the classical social contract theory. He argues that it “appears to offer a particularly clear account of how aggression against a political community is a crime against its members”, given that “a political community is made legitimate by the consent (tacit or explicit) of its members…[and] thereby acquires rights which derive from the rights of its members.”162 Although Walzer’s understanding of aggression appears to be based on individual rights, Luban and Parson take this as a misunderstanding.163 They read Walzer’s theory as being based on the collective right to self-determination of political communities.164 Accordingly, “aggression is the crime of war because it assaults the right to self-determination of political communities.”165 Irrespective of whether Walzer’s theory is perceived as an acknowledgement of individual rights or of the rights of the members of the political community, it constitutes an early acknowledgment of the human dimension of “State sovereignty”.166 May also links the crime of aggression to human interests. He acknowledges that aggression is “very hard to make sense of without a strong presumption in favor of State sovereignty”.167 In his view, however, there is a link to human rights as it would be much harder to protect them in a world without sovereign States.168 This is why he argues that those who aggress another State undermine the ability of a State to protect the human rights of those living within it.169 May demands an even 158

Walzer 2015, p. 53. See, e.g., Dannenbaum 2018, p. 78 who describes it as the “Walzerian orthodoxy that the jus ad bellum can be restricted morally to the macro level”. 159 Walzer 2015, p. 53. 160 Ibid. 161 Ibid., p. 54. 162 Luban 1980, p. 167. But see Peters 2009, pp. 518 et seq. who clarifies that the social contract theory concerns the “internal sovereignty” and not the “external sovereignty” towards other States, but ultimately argues that the current evolution of external sovereignty is parallel to the former. 163 Luban 2020, p. 23; Parsons 2012, p. 664. 164 See Luban 2020, p. 22 et seq.; Parsons 2012, pp. 666 et seq.; Redaelli 2020, p 616 et seq. 165 See Luban 2020, p. 22. See also Parsons 2012, p. 667 (“Aggression is a crime, for Walzer, because it violates, by definition, the rights of political communities.”). 166 Similarly, Redaelli 2020, p. 616. 167 May 2008, p. 222. 168 Ibid. 169 Ibid., p. 4. Similarly, Buchanan 2003, p. 169 (“those who wage aggressive war necessarily violate the human rights of those they attack”).

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stronger link between the criminalization of aggression and human rights.170 His initial claim, however, could be perceived as a “humanized” version of sovereignty, as he perceives the value of State sovereignty in the protection of human rights. From the “humanized” version of sovereignty, it is a small step to deny the aggressive nature of the use of force under certain circumstances. It could be denied, for example, whenever it is directed against a State that no longer benefits from the consent of the members of the political community that stands behind it.171 It could also be denied if directed against a State that no longer protects but systematically violates the human rights of its people.172 The mainstream view is that genuine humanitarian interventions are not a “manifest” violation of the UN Charter.173 The humanized understanding of sovereignty can explain why the use of armed force is not punishable under these circumstances, it does not violate sovereignty.174 However, the reverse of the “humanized” version of sovereignty is that it may also affect the interpretation of the primary norm of the prohibition of the use of force. The use of armed force to avert a humanitarian catastrophe falls in the grey area surrounding the prohibition of the use of force. It can be claimed that this use of armed force is not punishable, but it is more difficult to claim that it is lawful. Overall, these explanations of a “humanized” version of sovereignty link the crime of aggression to individuals by perceiving an attack on State sovereignty also as an attack on the rights of its members or as an attack that undermines the ability of a State to protect the human rights of those living within. They explain in reference to individuals why sovereignty is an interest worth being protected. The reverse of this “humanized” version of sovereignty is that it may also affect the interpretation of the primary norm.

3.5.4 The “Manifest” Threshold Cannot be Fulfilled Without Affecting Individuals The crime of aggression can also be conceptualized as a crime that protects individual rights due to the “manifest” threshold. A violation of State sovereignty and of international peace by using force in violation of the UN Charter, it could be claimed, is a necessary but not a sufficient condition for the criminal use of force.175 For the legal metamorphose of an act of aggression to a crime of aggression, the act of

170

May 2008, p. 3, 4. See Luban 1980, p. 169. 172 May 2008, p. 7 (“Indeed, if States systematically violate the basic human rights of their citizens, then those States have no right to insist that other States respect their sovereignty.”). See also Walzer 1980, pp. 216 et seq. For a critical view, see Mégret 2017, pp. 1408 et seq. 173 See Kreß 2009, p. 1141; Redaelli 2020, pp. 38 et seq.; Trahan 2015. 174 See Kreß 2017, p. 525; May 2008, p. 7. 175 See also Dannenbaum 2018, p. 69. See also May 2008, p. 4. 171

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aggression must constitute a “manifest” violation of the UN Charter, by its “character”, “gravity” and “scale”. Although States Parties did not explicitly list acts against individuals in Article 8bis of the ICC Statute, they opted against a one-dimensional threshold. They supported the three-dimensional threshold, composed of terms with vague legal meanings.176 This offers the opportunity to consider whether individual interests are included. Perceiving the difference between the prohibition and the criminalization of aggression in the latter’s human impact is suggested, for example, by Dannenbaum. He claims that the “manifest” threshold “ought to be measured against unjustified human harm”.177 McDougall shares the view that “[i]t is difficult to see how this definition [of the crime of aggression] could be met in the absence of the killing and wounding of innocent persons and significant damage to property.”178 Such an interpretation would also be consistent with May’s claim that individuals should only be prosecuted for the crime of aggression if there are “actual as well as…likely human rights abuses”.179 According to May, “the mere crossing of borders is not a sufficient normative rationale for prosecuting State leaders for the international crime of aggression” as it “does not have the same level of seriousness…as other crimes”.180 Whether an interference with individual interests is required for the use of armed force to be punishable depends on the interpretation of the “manifest” threshold of Article 8bis of the ICC Statute and its three qualifiers. States Parties have given the International Criminal Court very little guidance.181 According to its ordinary meaning, “manifest” means “clear or obvious to the eye or mind”.182 The “manifest” threshold has a qualitative and a quantitative dimension.183 The quantitative dimension, as articulated by the related184 notions of “scale” and “gravity”, could allow the inclusion of individual interests. If it is necessary to give the terms “scale” and “gravity” a distinct meaning, Kreß suggests to make use of the distinction made

176

The “manifest” threshold and the three qualifiers have been criticized for their vagueness, see, e.g., Murphy 2009, pp. 1150 et seq.; Paulus 2009, p. 1121; van Schaack 2011, p. 484. 177 Dannenbaum 2018, p. 106 178 McDougall 2021, pp. 51 et seq. 179 May 2017, p. 280; May 2008, pp. 3 et seq. 180 May 2008, p. 3, 4. 181 McDougall 2021, p. 157; Ruys 2018, p. 910. 182 See “manifest” according to the Oxford dictionary. See also Article 46(2) of the VCLT which considers a violation to be manifest “if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.” 183 See, in detail, Kreß 2017, pp. 507 et seq. 184 See Kreß 2017, p. 520; Zimmermann and Freiburg-Braun 2021, para. 62.

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by the International Court of Justice185 and Judge Simma186 between “scale” and “effects” or “impact”.187 “Scale” describes the “means”188 or “level or magnitude of the alleged act of aggression”,189 by taking into account the geographical or temporal spread of the use of force.190 This naturally depends upon the person- and firepower used.191 “Gravity”, in contrast, is understood as referring to the effects or impact of the use of force.192 Among the effects to consider, Kreß mentions “the number of human casualties on all sides, the scope of the disturbance of common life within the victim State and the level of property destruction on all sides”.193 Thus, “gravity” has a dimension that includes the effects on individuals and human life. The criterion of “gravity” could explain why the crime of aggression protects individual legal interests such as life, limb and property. Since the three qualifiers “character”, “gravity” and “scale” are understood conjunctively,194 each is necessary for a crime of aggression and can thus affect its core wrong. If the “gravity” qualifier of the “manifest” threshold is understood in that way, one could argue that the crime of aggression, unlike the act of aggression requires an effect on individual interests.195 This brings us to the question of which effects must be considered. A broad approach would be consistent with the famous allegation of the Nuremberg Tribunal 185

See ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, 27 June 1986, ICJ Reports 1986, p 14, paras 195, 249. The Court explains the difference between “armed attacks” under Article 51 of the UN Charter and the use of force “of lesser degree of gravity”, which is primarily one of “scale and effects”, by relying on one of the exemplary acts of aggression as annexed to UN General Assembly 1974. 186 See ICJ, Armed Activities on the Territory of the Congo (DR Congo v Uganda), Judgment, 19 December 2005, separate opinion by Judge Simma, ICJ Reports 2005, p. 168, para 2. He compares the Ugandan invasion of the Congo by means of the “scale and impact” to other more insignificant uses of force. He concludes that the Ugandan use of armed force appears to be the textbook example of an “act of aggression” in the sense of Article 3(a) of the Annex to UN General Assembly 1974. 187 Kreß 2017, p. 520. See also Dinstein 2017, para 384 who contends that “gravity” and “scale” have their roots in the definition of the 3314 UN General Assembly Resolution and the Nicaragua Judgment; Ruys 2018, p. 907 whereby analogies for the purpose of the interpretation of the crime of aggression can be drawn from “the ICJ’s distinction between ‘less grave’ uses of force, which should not be qualified as ‘armed attack’ in light of their ‘scale and effects’”; Trahan 2015, p. 59. 188 Kreß 2017, p. 520. 189 See Zimmermann and Freiburg-Braun 2019, p. 58; Zimmermann and Freiburg-Braun 2021, para 63. See also Dinstein 2017, para 384. 190 Zimmermann and Freiburg-Braun 2021, para 63. Without making a distinction between gravity and scale but also referring to the geographical and temporal spread, see Sayapin 2014, p. 232. 191 Kreß 2017, p. 520. 192 Ibid. 193 Ibid. See also Ruys 2018, p. 907 who describes as relevant factors the resulting loss of life and damage to infrastructure although he does not make a distinction between gravity and scale. 194 See the connector “and” as well as Review Conference of the Rome Statute 2010, Annex III, Understanding 7. In the same vein, Kreß 2017, pp. 511 et seq.; McDougall 2021, pp. 158 et seq.; Trahan 2018, p. 326; Zimmermann and Freiburg-Braun 2021, para 58. 195 See already the claim made by May whereby actual and likely human rights abuses are necessary to reach the threshold for a crime of aggression, May 2017, p. 280. See also May 2008, pp. 3 et seq.

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that the crime of aggression “contains within itself the accumulated evil of the whole”.196 This would include all harm to individual interests caused in the context of the aggressive use of force, irrespective of whether the conduct is in compliance with international humanitarian law197 or amounts to another crime under international law. There is a key advantage of including harm caused by aggression even if it complies with international humanitarian law. It draws attention to the forgotten “legal deaths”198 of armed conflicts. These are the combatants and civilians that are lawfully killed under international humanitarian law and are therefore “not computed as a cost of war”.199 Killing and destruction in compliance with the primary norms of international humanitarian law cannot amount to a violation of the secondary norms of war crimes. Including this harm in the assessment of the crime of aggression helps to emphasize the character of international humanitarian law as a “plan b”. It serves to reduce the human suffering during armed conflicts once “plan a”, the prevention of armed conflict, has failed. The inclusion of killings which result from aggression even if in compliance with international humanitarian law also corresponds to the view of the UN Human Rights Committee. It affirmed that “States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the [International] Covenant [on Civil and Political Rights]”.200 Thus, the right to life of individuals killed as a consequence of an act of aggression is violated even if the killings are in compliance with international humanitarian law. Including the harm which also fulfills the requirements of other core crimes would underline the common description of aggression as being the “mother of all crimes”.201 According to Reisinger Coracini and Wrange, the use of force creates an environment in which the commission of other core crimes is more likely.202 Mégret, in contrast, argues that there is not “any obvious empirical correlation between violations of the jus ad bellum and violations of the jus in bello”.203 Recent history would show that many instances of genocide and crimes against humanity occur even without a prior crime of aggression.204 On the other hand, the ruthless Russian 196

IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. Zimmermann and Freiburg-Braun 2021, para 62 (“In determining the gravity of an act of aggression, the amount of damage caused to the attacked state ought to be taken into account…it is irrelevant whether such damages…did (or did not) amount to a violation of applicable rules of jus in bello…”). 198 Mégret 2017, p. 1422. 199 Ibid., p. 1421. 200 See UN Human Rights Committee 2018, para 70. 201 For such a description, see Ferencz 2015, p. 189. See also Moyn who describes it as a “gateway crime” for the commission of other crimes, see Moyn 2020, p. 351. For a discussion whether the crime of aggression is really the “mother of all crimes”, see Mégret 2017, pp. 1416 et seq. For a critical view, see also Stahn 2019, p. 98. 202 Reisinger Coracini and Wrange 2017, p. 320. 203 Mégret 2017, p. 1419. 204 Ibid., p. 1417. 197

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aggression against Ukraine has shown that mass killings of civilians, or using rape as a weapon of war, are a likely by-product of crimes of aggression. It is possible, however, to avoid the discussion about whether aggression necessarily leads to the commission of other core crimes. This could be done by including all harm that results from the crime of aggression irrespective of whether it fulfills the requirements of other core crimes. Overall, there is an advantage of adopting a broad approach that includes all harm to individual interests caused in the context of the aggressive use of force, irrespective of whether the conduct complies with international humanitarian law or amounts to another crime under international law. It better rejects the allegation that nobody needs aggression as a “human rights ‘copy’ when one has the international humanitarian ‘original’”,205 the crime of genocide or crimes against humanity to criminalize the effect on humans. In the situation in Ukraine, for example, many Ukrainian combatants were probably lawfully killed. Their killings would be ignored in the assessment of war crimes. There was, however, no tenable justification to initiate the use of armed force in the first place which led to the conflict in which they were killed.206 Similarly, civilians may have been killed without fulfilling the requirements of a war crime, crime against humanity, or genocide. By including all harm, the crime of aggression captures the total human impact of the manifestly unlawful use of force which is not covered by other crimes.207 There are, however, scholars who claim that individual interests are not always harmed by the commission of a crime of aggression. Pobjie clarifies that “human casualties are not referred to [in Article 8bis of the ICC Statute] nor will necessarily result from the act of aggression”.208 She does not deny the destructive potential of the crime of aggression on individual interests but does not perceive this as the core of the crime. Similarly, Zimmermann does not consider the factual impairment of individual interests as the core wrong of the crime of aggression as some persons are always spared by the horrors of war.209 These objections that the crime of aggression does not necessarily involve harm to individual interests can be tested when addressing the question of whether “bloodless invasions” amount to a crime of aggression.210 These are invasions of a State that do not lead to human casualties, such as invasions or annexations of an uninhabited

205

Mégret 2017, p. 1430. Similarly, Bassiouni 2018, p. 57 who states that maybe the best policy solution is to leave aggression in the category of a legal concept in limbo and to direct new efforts toward other international crimes, which are the outcome or consequence of aggression. 206 Green et al. 2022. 207 See also Reisinger Coracini and Wrange 2017, p. 319 whereby individuals are protected by Article 8bis of the ICC Statute as part of a collective in the context of the unlawful use of force. 208 Pobjie 2017, p. 821. See also Boeving 2005, p. 588. 209 Zimmermann 2017, pp. 199, fn. 813. 210 For a detailed discussion, see Dannenbaum 2018, pp. 102 et seq.; Kreß 2017, pp. 522 et seq. See also Ruys 2018, p. 910. On the question whether a bloodless invasion triggers the right to self-defense, see Rodin 2002, pp. 131 et seq.

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piece of land, or the overwhelming show of force that meets no resistance.211 The Russian invasion and annexation of the Crimea in 2014, which involved only a few casualties,212 serves as a recent textbook example. The International Military Tribunal at Nuremberg did not provide consistent jurisprudence on similar matters.213 While the German invasion of Denmark was qualified as an act of aggressive war despite the low number of casualties,214 the relatively “bloodless invasions” of Austria and Czechoslovakia were only described as lesser forms of aggression.215 This inconsistency is also prevalent in more recent discussions about whether “bloodless invasions” amount to a crime of aggression. As Ruys notes, “[i]f aggression is construed primarily as a crime against the state, then an invasion and occupation—even if ‘bloodless’ of even a small part of its territory could still be of substantial ‘gravity’. Territorial annexation is indeed the gravest assault upon state sovereignty.”216 If the crime of aggression is understood as a crime that needs a link to individuals, the answer is less clear. Dannenbaum perceives the unjustified killing of human persons as the wrong of the crime of aggression. Hence, he doubts that the mere Russian threat to respond with lethal force to potential Crimean resistance would suffice for a crime of aggression.217 However, the crime of aggression is not a mere threat of force. Unlike Article 2(4) of the UN Charter, Article 8bis of the ICC Statute requires the “use of armed force”.218 This could be understood as an inherent threat to use lethal force in case of resistance. As Rodin notes, “even if the aggressive act does not in fact result in the death of any person, the mere fact that it is an act of force entails a readiness on the part of the aggressors to kill if, for instance, resistance is met”.219 According to Kreß, there is no compelling reason why the imposition of a serious risk to human life, together with the violation of sovereignty and international peace should not reach the threshold of Article 8bis of the ICC Statute.220 Kreß assumes that a bloodless invasion, even if it does not lead to casualties among humans, “poses the serious risk of the occurrence of such casualties because the invaded state may take the lawful choice to exercise its right 211

For various situations of bloodless invasions, see Rodin 2002, p. 132. For similar definitions, see Dannenbaum 2018, p. 102 (“the illegal military taking of territory or usurpation of governmental power without the infliction of casualties”); Kreß 2017, p. 522 (“an invasion of an aggressor state, which meets with no forcible resistance from the victim state and in the course of which no bloodshed occurs”). 212 See Office of the United Nations High Commissioner for Human Rights 2017, para. 80 whereby only six people died during the events in Crimea in 2014. 213 Kreß 2017, p. 522. See also Dannenbaum 2018, p. 103. 214 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 437. 215 See Kreß et al. 2017, p. 522 such as “aggressive action”, “premediated aggressive step”, “occupation” or “seizure”. See also Brownlie 1963, pp. 211 et seq.; Jescheck 1952, pp. 351 et seq. 216 Ruys 2018, p. 910. 217 Dannenbaum 2018, p. 86, 107. 218 Kreß 2017, p. 424. 219 Rodin 2002, p. 133. 220 Kreß 2017, p. 523.

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to self-defence”.221 According to Kreß, such a bloodless invasion can still fulfill the “gravity” qualifier, depending on the “extent the common life within the invaded state is disturbed” and on “how many human beings on both sides are put at serious risk of being affected”.222 Unlawful invasions without human casualties can still amount to a crime of aggression without refuting the allegation that the “manifest” threshold requires an impact on humans. It suffices that human interests are put at serious risk. To conclude, it is possible to reconcile the crime of aggression with the humanization of international law by interpreting the vague “manifest” threshold of Article 8bis(1) of the ICC Statute, especially the “gravity” qualifier, in a way that requires acts of aggression to cause harm to individual interests, or to put them at serious risk. Such an understanding would emphasize the actual (and likely) impact on humans of the unlawful use of force. The impact on humans consists of killing and destruction irrespective of whether the acts comply with international humanitarian law or fulfill the conditions of other core crimes. Requiring actual or likely harm to individuals is a good compromise between the demands of the humanization of international law and the State-centric wording of Article 8bis of the ICC Statute. It is also compatible with the nature of criminal law to act as ultima ratio and to leave certain gaps of accountability if a violation of sovereignty and of international peace does not suffice.223 However, this conceptualization of aggression does not lead to a higher level of protection for individual interests. It always requires their actual violation or serious endangerment. The protection from abstract risk would promise an earlier protection for individual interests and only require criminalizing the violation of sovereignty and international peace.

3.5.5 Lower Level of Protection of Individual Interests by Triggering International Humanitarian Law A third way of establishing a link to individual interests is to emphasize their lower level of protection once the crime of aggression has triggered the “more permissive”224 regime of international humanitarian law.225 To start with, the application of international humanitarian law formally requires an “armed conflict”.226 According to the International Committee of the Red Cross, 221

Ibid. Ibid. 223 For an English explanation of the ultima ratio principle as understood under German criminal law, see Dubber 2005, p. 692. 224 Lieblich 2016, p. 731; Ohlin 2017, p. 461. 225 See Reisinger Coracini and Wrange 2017, p. 320. On the lower level of protection caused by the crime of aggression, see also Zimmermann 2017, p. 199 fn. 813; Zimmermann 2010, pp. 509 et seq. 226 For international armed conflicts, see Common Article 2 of the 1949 Geneva Conventions. 222

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an “armed conflict of an international character” occurs when “one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation”.227 By definition, the crime of aggression consists of the “use of armed force”. The threat of force by one State against another State does not suffice. Thus, an “armed conflict” seems to automatically result from a crime of aggression. Others may argue that the term “conflict” requires a clash or disagreement between two States, which is lacking in case of unilateral use of armed force against another purely passive State. This alternative view is that the parties need to be “engaged in fighting of some intensity”.228 However, requiring a reaction of the attacked State to trigger the application of rules that further regulate the use of force would unduly privilege powerful States that meet little resistance. In light of these considerations, a crime of aggression seems to automatically provoke the application of international humanitarian law. Some might question whether the triggered application of international humanitarian law leads to a “more permissive regime”, a regime of reduced protection for individual interests. International humanitarian law seeks to ensure a minimum standard of humanity during armed conflicts while ordinary criminal law and human rights law have a restricted extraterritorial application.229 Hence, the application of a regime that has a moderating effect abroad is welcome. However, international humanitarian law does not rule out all harmful effects on combatants and civilians. It seeks to reduce them to a bearable level.230 It is a compromise between humanitarian concerns and considerations of military necessity.231 According to international humanitarian law, armed force shall only be used against military objectives and combatants,232 it shall be proportional233 and necessary.234 On the basis of these general rules of international humanitarian law, combatants and military objectives are turned into legitimate targets. Civilian objects and civilians are to be spared and may only be destroyed or killed by an attack as collateral damage.235 The domestic 227

See the interpretation of Common Article 2 of the 1949 Geneva Conventions, in ICRC 2008, p. 1; See also Kleffner 2021, Section 3.02, para 1whereby the law of international armed conflict applies from the first moment that force is used by one State against another State (the so-called “first-shot” theory). 228 See International Law Association Committee on the Use of Force 2010, 2. See, in detail, on these two alternative views Kleffner 2021, Section 3.02, para 1. 229 See, e.g., for the transnational application of German criminal law, Jeßberger 2011. On the extraterritorial application of human rights law, see Murray 2016. 230 Similarly, Reisinger Coracini and Wrange 2017, p. 320 (“While international humanitarian law strives to reduce the horrors of war, it cannot make war ‘human’.”). 231 Kleffner 2021, Section 3.01, para 1. 232 See Protocol (I) Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978)(Additional Protocol I), Article 48. On the principle of distinction, see Melzer 2015. 233 See, e.g., Article 51(5)(b) and Article 57(2) of the Additional Protocol I. In detail, see Cannizzaro 2015. 234 For the principle of necessity, see, e.g., Article 57(3) of the Additional Protocol I. 235 Cannizzaro 2015, p. 335.

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criminal law prohibition of killing, normally perceived as elementary for human coexistence, is suspended regarding combatants and relaxed regarding civilians as soon as international humanitarian law applies.236 Similarly, other domestic prohibitions, such as the prohibition of damage to property, are suspended regarding military objectives and relaxed regarding civilian objects under international humanitarian law. The suspension and relaxation of the prohibition of killing and destruction are the reason why international humanitarian law is perceived to provide a reduced standard of protection for individuals in comparison to the standard during peacetime.237 As Mégret frames it, the aggressor has “brought about a state of affairs (war) in which the laws of war apply (for what may otherwise be good, humanitarian reasons), and as a result make permissible the impermissible”.238 This normative implication of the crime of aggression, the radical change from the law during peacetime to the law of armed conflict, leads to an abstract endangerment of individual interests, such as life, limb and property.239 It would also be consistent with the discussions on the human right to peace240 to perceive the reduced level of protection for individual interests during armed conflicts as the human protective dimension of the crime of aggression. As explained in Chap. 2, the human right to peace is not yet codified as a full-fledged right.241 Traces of its existence, however, can be found in various international documents.242 One of the latest is the Declaration on the Right to Peace adopted by the UN General Assembly on 19 December 2016.243 Article 1 states that “[e]veryone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized”. This shows that the right to peace can be understood as a prerequisite for the enjoyment of other human rights, such as the right to life.244 Its violation precedes the violation and serious endangerment of the right to life and coincides with the violation of international peace. The commission of aggression puts an end to “negative peace”, namely to the absence of inter-State violence, or even the absence

236

Werle and Jeßberger 2020a, para 1147. Ohlin 2017, p. 1461. 238 Mégret 2017, p. 1437. See also Ohlin 2017, pp. 1455. 239 Reisinger Coracini and Wrange 2017, p. 320. See Zimmermann 2017, p. 199 who argues, however, that this negative effect on all individual interests does not lead to an individualization of a victim. It is therefore the collective interest of peace and not individual interests which are affected by aggression. 240 On the human right to peace, see Schabas 2017; Schabas 2007, pp. 608 et seq.; Schabas 2012; Tehindrazanarivelo and Kolb 2006; Witschen 2018. 241 See Chap. 2, Sect. 2.4.3.2. See also Schabas 2017, p. 353; Tehindrazanarivelo and Kolb 2006, para 16. 242 See Schabas 2007, pp. 608 et seq. 243 See UN General Assembly 2016; as previously adopted by UN General Assembly Third Committee 2016; UN Human Rights Council 2016. For a detailed analysis of Article 1, see Guillermet Fernández and Fernández Puyana 2017, pp. 266 et seq. 244 See also Alston 1980, p. 328 (“sine qua non for the full realization of all human rights”); Tehindrazanarivelo and Kolb 2006, para 13. 237

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of armed conflict. The human protective core of the criminalization of aggression is not found behind sovereignty, but behind international peace. Such an understanding, which squares with the discussions on the human right to peace, may satisfy those who require—like the proponents of the personale Rechtsgutslehre under German criminal law—the protected interests to be traced back to personal rights and interests. It does so, however, without neglecting aggression’s nature as a crime that protects the collective interests of sovereignty and international peace. Zimmermann considers that the described reduced level of protection for individual interests does not challenge the classification of the crime of aggression as a crime that protects collective interests.245 He explains that it is ultimately the “truly collective interest” of peace which is protected by the criminalization of aggression.246 According to Zimmermann, the impairment of a “truly collective interest” automatically leads to the impairment of the interests of a collectivity of persons without, however, individualizing a victim.247 The impairment of a “truly collective interest” automatically affects the individual interests of everyone.248 This approach perceives the human protective core in the lower level of protection of individual interests caused by the use of armed force against another State and the triggered application of international humanitarian law. If the human right to peace is acknowledged, the crime of aggression would lead to a simultaneous violation of international peace and the individual interest.

3.5.6 Conclusion to Individual Interests as Protected Legal Interests To conclude, the protection of individual interests is more controversial. It does not explicitly flow from the wording of Article 8bis of the ICC Statute. Due to the “humanization of international law”, there are attempts to describe the human protective core of the crime of aggression. The first option is to perceive sovereignty which helps to protect the individuals who live within the State. An attack on State sovereignty is an attack on the rights of its members. An attack undermines the ability of a State to protect the human rights of those living within. The second option for bringing the crime in line with humanized international law is based on a specific interpretation of the “manifest” threshold, especially the “gravity” qualifier of Article 8bis(1) of the ICC Statute. This interpretation requires punishable acts of aggression to cause harm to individual interests, or to put them at serious risk. The crime of aggression would emphasize the actual (and likely) impact of the unlawful use of force on humans. This impact consists of killing and 245

Zimmermann 2010, p. 199, fn. 813. Ibid. 247 Zimmermann 2017, pp. 198 et seq. 248 Ibid. 246

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destruction irrespective of whether they comply with international humanitarian law or fulfill the conditions of other core crimes. This conceptualization of aggression does not necessarily lead to a higher level of protection for individual interests, as it always requires their actual violation or serious endangerment. The protection from abstract risk is the one that would promise an earlier protection. This earlier protection seems to be provided by the third option. It perceives the human protective core of the crime of aggression in the lower level of protection under international humanitarian law. The application of the latter field of law is triggered by the use of armed force against another State. It legalizes killings and destruction under certain conditions. Depending on whether one acknowledges the “right to peace”, the violation of international peace comes along with the violation of this human right, which puts other individual interests at abstract risk. All explanations of the human protective core of the crime of aggression have their shortcomings. The first explanation, which perceives the value of sovereignty in the value of those that stand behind the State may expose the underlying prohibition of the use of force to the risk of creative interpretation. The second explanation of the human protective core is based on the vague “manifest” threshold and its equally vague “gravity” qualifier. The International Criminal Court, however, may establish an interpretation that is detached from human suffering. The third explanation assumes that individual interests are endangered by the application of international humanitarian law triggered by the crime of aggression. For some, it may appear contradictory to allow killings and destruction under international humanitarian law and simultaneously perceive this permission as the reason why the crime of aggression also protects individual interests. The three explanations of the human protective core of the crime of aggression are not necessarily mutually exclusive. This author perceives the human protective core of the crime of aggression primarily in the lower level of protection of individual interests, which typically results from the shift from the law during peacetime to international humanitarian law. This does not question the pragmatic position of international humanitarian law to allow harm to individual interests under certain conditions. The crime of aggression is rather a necessary counterpart to the indifference of international humanitarian law towards these individual interests.249 Without the crime of aggression, law would remain indifferent towards the blameworthy creation of the conditions of one’s own defense.250 Due to the vague “manifest” threshold and its “gravity” qualifier, it is not excluded that the crime of aggression will be interpreted as additionally requiring actual or likely harm to individual interests. Although this does not lead to a higher level of protection for individual interests, it corresponds to the nature of criminal law to act as ultima ratio. It also makes more concessions to the unease of humanized international law with a State-centric crime, draws a clear line between unlawful and punishable use of armed force, and is better than merely 249

Similarly, Ohlin 2017, p. 1462 (“Indeed, the permissive nature of jus in bello is only legitimate because the jus ad bellum framework exists on the other side of the coin.”). 250 For an overview in English, see Herrmann 1986; Ohlin 2017, p. 1456 et seq. For an overview of the related concepts under American law, see Robinson 1985.

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prosecuting the impact of aggression on humans which also fulfills the requirements of other core crimes. This leads to a multidimensional protective scope of the crime of aggression. It protects State sovereignty in line with the State-centric language of Article 8bis of the ICC Statute. It protects the “truly international legal interest” of international peace in line with the Preamble of the ICC Statute, the underlying primary norm and its Nuremberg predecessor, and also individual interests, albeit in a less straightforward way.

3.6 The Type of Attack on the Protected Legal Interests The protected legal interests cannot fully capture the “core wrong” of a crime.251 Legal interests are only protected from certain types of attacks. There may be modalities that make up the core wrong of the crime but are not yet captured in the violation, or endangerment of the protected legal interests. Elaborating the type of attack helps to nuance the protective scope of the crime of aggression. It clarifies against what and from whom the legal interests identified above are protected.

3.6.1 Use of Armed Force by a State The use of armed force by a State against another State is the first modality that characterizes the type of attack criminalized by Article 8bis of the ICC Statute.252 This limitation of the protective scope is suggested by the wording of Article 8bis(2) of the ICC Statute253 and by the travaux préparatoires.254 Violence of non-State actors is excluded and the executing acts of individuals, such as shooting, bombing and invading, are absorbed at the macro level by the conduct of a State. An alternative would have been to include non-State actor violence in the definition of the crime, given that the protected legal interests can also be impaired if the

251

Similarly, Roxin 2006, p. 15 fn. 18. See also Jakobs 1991, p. 41; Jescheck and Weigend 1996, p. 240; Werle and Jeßberger 2020a, para 121 whereby the interests of peace, security and the well-being of the world interests are protected “against attacks from various directions”. 252 Cassese 2007, p. 846; Cryer et al. 2019, p. 297; Kreß and von Holtzendorff 2010, p. 1190; Zimmermann and Freiburg-Braun 2021, para 43. 253 The limitation to use of armed force by a State is explicitly laid down in Article 8bis(2) which requires the “use of armed force by a State” in the generic definition, as well as action “by the armed forces of a[nother] State” in the listed acts. 254 Kreß and von Holtzendorff 2010, p. 1190. See already the restriction to the conduct of a State in Barriga and Kreß 2011b.

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use of force does not take place between States.255 International peace, for example, can also be breached if non-State actors resort to violence.256 The deliberate decision of the States Parties to exclude non-State actor violence has been subject to criticism in literature.257 This is due to the logically reduced protection of sovereignty, peace and individual interests, as well as contrary developments in international law and reality. In the words of Cassese: “If the purpose of the relevant international rules is to protect the world community from serious breaches of the peace, one fails to see why individuals operating for non-State entities should be immune from criminal liability for aggressive conduct.”258 Similarly, Drumbl deplores: “If the purpose of the criminalization of aggression is to protect security, stability, sovereignty, and human rights interests, crimping the conversation by focusing only on the core prohibitions that emerged six decades ago leaves a significant array of serious threats outside the framework of international criminal law….”259 These comments show that the origin of the unlawful use of force from non-State actors would not matter if the core wrong of the crime of aggression was conceptualized purely on the basis of the protected legal interests. The exclusion of armed force by non-State actors has also been criticized for being “exceptionally antiquated”.260 The prevalence of use of force by non-State actors261 and the developments of international law break with the traditionally State-centric configuration of the international legal order.262 The UN Security Council is now prepared to determine a threat to international peace under Article 39 of the UN Charter in the case of massive violence by non-State actors.263 Article 51 of the UN Charter is read by some as being able to be triggered by an armed attack by non-State violence.264 Parallel discussions about non-State actor violence in international humanitarian law show that the allegedly higher financial, military and organizational capacities of State

255

For a critical view on the exclusion, see Cassese 2007, p. 846; Drumbl 2009, p. 310. For a discussion, see McDougall 2021, pp. 131 et seq. 256 “Peace” is nowadays increasingly understood as also including the intrastate level, see Bailliet and Mujezinovi´c Larsen 2015, p. 2. See also Sect. 3.4.1. above. 257 Cassese 2007, p. 846; Drumbl 2009, p. 310. 258 Cassese 2007, p. 846. 259 Drumbl 2009, p. 310. 260 Scheffer 2017, p. 84. On the idea of defining the wrong differently, see Lieblich 2016. See also Cassese 2007, p. 847; Drumbl 2009, p. 291. 261 For this critique, see, e.g., Cassese et al. 2013, p. 140; Ventura 2018, p. 389. 262 For an overview of these developments in the field of the ius contra bellum, the ius in bello, international human rights law and international criminal law, see Kreß 2010. 263 Krisch 2012a, paras 19 et seq. 264 For the question on the right of self-defense and non-State actors, see Cryer et al. 2019, p. 308 with further references; Kreß 1995; Ruys 2010, pp. 488. For a critical view, see Nolte and Randelzhofer 2012, paras 35 et seq.

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actors to justify the focus on these actors265 does not correspond to reality. NonState actors can have the same destructive potential.266 In that regard, the African Union adopted a wider definition of the crime of aggression in the Malabo Protocol which includes non-State violence.267 It may be questioned whether the use of armed force by States against States should still be regarded as the core wrong of the crime of aggression. States Parties to the International Criminal Court, however, pragmatically opted for a definition which stays within the confines of the core of ius ad bellum.268 Their “least common denominator approach”269 is not atypical of criminal law which acts as ultima ratio and automatically leaves certain gaps of accountability. The crime of aggression under the ICC Statute only provides a protective umbrella for international peace, State sovereignty and individual interests from interstate armed violence and not irrespective of its origin.

3.6.2 The Aggressive Use of Armed Force: A Manifest Violation of the Ius ad Bellum As the name suggests, the aggressive use of armed force or the “aggression” component is an essential modality that characterizes the core wrong of the crime of aggression. Article 8bis of the ICC Statute does not protect the legal interests identified above against any form of the use of armed force but exclusively against aggressive ones. In ordinary language, “aggression” is understood as “readiness to attack or confront”270 or in a pejorative sense for action that is both “unjustified and unprovoked”.271 Under international law prior to the ICC Statute, there have been several approaches to capture the essence of the “aggression”.272 “Aggression” was, for 265

For the historical development of international humanitarian law and its reluctant application to non-international armed conflicts, see ICRC 2016, paras 357 et seq.; David 2015, p. 353. 266 This is, inter alia, why international humanitarian law only applies to non-international armed conflicts, if the non-State actors are a sufficiently organized group and the hostilities reach a certain level of intensity, see David 2015, p 356 et seq.; Werle and Jeßberger 2020a, paras 1211 et seq. 267 See Article 28M (B) of the Malabo Protocol: “State, group of States, or non-State actor(s) or by any foreign entity”. Ambos 2017, p. 50. The Malabo Protocol is the name used for the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights of 27 June 2014. It aims to establish a criminal chamber within the yet-to-be established African Court of Justice and Human and People’s Rights. See Werle and Jeßberger 2020a, para 78. 268 Kreß and von Holtzendorff 2010, p. 1190. In favor of a more modern understanding of ius ad belllum, see Lieblich 2016. 269 Drumbl 2009, p. 310. 270 Stevenson 2010. 271 See McMahan 2017, p. 1397. For a detailed analysis of the meanings of “aggression”, see also May 2008, p. 209 et seq. 272 Kreß 2017, pp. 528 et seq.

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example, understood in juxtaposition with defense, on the basis of the priority principle as the first invasion or bombing, or in juxtaposition with defense, justification and excuse.273 The “aggression” component in Article 8bis of the ICC Statute is not only understood as an antonym to the defensive use of force in the sense of Article 51 of the UN Charter or as an antonym to lawful use of force. The “aggression” component implies a violation of the underlying primary norms of ius ad bellum, but it also contains a threshold clause. It limits the punishable use of force to acts of aggression which constitute a “manifest” violation of the UN Charter by their “character”, “gravity” and “scale”. The crime of aggression does not protect the underlying prohibition of the use of force in its entirety but only in its core.274 The threshold clause is understood as having a qualitative and a quantitative dimension.275 The qualitative dimension, as articulated by the component of “character”,276 excludes uses of force from criminality that fall within the grey area surrounding the prohibition of the use of force. These are uses of force “whose legality under international law forms the object of genuine disagreement between reasonable international lawyers”.277 The use of armed force by Russian forces against Ukraine in 2022, in contrast, does not seem to be based on any debatable legal justification.278 There is no evidence substantiating the Russian allegation that genocide has been committed on Ukrainian territory prior to the invasion.279 There is no evidence that Russia is in a position to use self-defense to protect itself from an imminent armed attack by Ukraine or the NATO.280 Finally, there is no evidence Russia is in a position to use force with the alleged consent of the regions of Donetsk and Luhansk or in collective self-defense.281 The quantitative dimension, as articulated by the components of “gravity” and “scale”, serves to exclude those cases of the use of force which are not of sufficient intensity.282 The intensity threshold of Article 8bis(1) of the ICC Statute is higher than the one of an “armed attack” within the 273

For a detailed account of various approaches, ibid. Ibid., p. 418. 275 See, in detail, ibid., pp. 507 et seq. 276 See ibid., p. 523. See also Dinstein 2017, para 384; Zimmermann and Freiburg-Braun 2019, para 251. 277 Kreß 2017, p. 524. Similarly, Barriga 2012, p. 29; McDougall 2021, p. 156. On the grey area, see Trahan 2015, p. 59 et seq.; Zimmermann and Freiburg-Braun 2021, paras 69 et seq. 278 For the alleged justification of the “special military operation”, see the statement by President Putin, made on 24 February 2022: http://en.kremlin.ru/events/president/transcripts/67843; see also the letter from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General: https://digitallibrary.un.org/record/3959647. Accessed 15 September 2022. 279 See ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russia), Order, 16 March 2022, para 59. 280 See Green et al. 2022; Kreß 2022; Members of the International Law Association Committee on the Use of Force 2022; Open Society Justice Initiative 2022, paras 58 et seq. 281 See ibid. 282 Kreß 2017, p. 510; McDougall 2021, p. 162. 274

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meaning of Article 51 of the UN Charter.283 The Russian aggression against Ukraine appears to be of sufficient intensity. There is a high number of casualties on all sides. The property destruction is severe in Ukraine. The common life in Ukraine has been severely disturbed and many people are fleeing the country. The firepower used by Russia spreads over the territory of Ukraine and ranges from missiles, heavy artillery shells, rockets and airstrikes.284 The limitation to manifestly unlawful and serious uses of armed force focuses on particularly dangerous uses of force for international peace and other protected interests. This is because the use of armed force that reaches the threshold of manifest illegality and intensity typically meets the conditions of provisions that regulate lawful counterforce by others under the ius ad bellum. A crime of aggression typically fulfils the conditions of an “armed attack”285 and thereby triggers the right of the aggressed State to lawfully strike back in self-defense under Article 51 of the UN Charter.286 It creates the conditions for military allies to assist the aggressed State.287 The Russian invasion placed Ukraine in a position to strike back in self-defense and the Ukrainian President Zelensky has repeatedly requested other States to assist Ukraine.288 A crime of aggression also puts the UN Security Council in a position to make use of its Chapter VII powers and to authorize the use of armed force against the aggressor State.289 The UN Security Council does not need to wait for the use of armed force that reaches the threshold of an “act of aggression”, since it enjoys “considerable discretion”290 in its determinations under Article 39 of the UN Charter. Nonetheless, this does not challenge the fact that a crime of aggression surpasses the formal requirements for the UN Security Council to authorize the use of force. This potential cycle of unlawful force and lawful counterforce291 under the ius ad bellum shows why the manifestly unlawful and serious use of armed force is particularly dangerous. The unlawful Russian use of force in 2022 and the reaction of Ukraine has put the international community on the verge of World War III. 283

Kreß 2017, p. 513. Open Society Justice Initiative 2022, paras 58 et seq. 285 See Kreß 2017, p. 513, whereby the “intensity threshold [of Article 8bis(1) of the ICC Statute] is higher than the intensity threshold of an armed attack within the meaning of article 51 of the UN Charter”. See also Akande and Tzanakopoulos 2017, pp. 229. 286 Mégret 2017, p. 1403, whereby “aggression forces the attacked state’s hand in at least one key respect: the need to defend itself”. Similarly, Jeßberger and Geneuss 2021, pp. 298. 287 See, e.g., North Atlantic Treaty, opened for signature 4 April 1949, 34 UNTS 243 (entered into force 24 August 1949)(North Atlantic Treaty), Article 5. 288 E.g., President Zelensky called on the NATO to establish a no-fly zone over Ukraine, see https://www.nytimes.com/2022/03/05/us/politics/zelensky-congress-no-fly-zone.html. Accessed 15 September 2022. 289 See UN Charter, Article 39. 290 Krisch 2012a, para 4 The UN Security Council usually turns to the broader concept of a “threat to the peace” under Article 39 of the UN Charter to make use of its powers. 291 Although the use of force in self-defense is lawful, the restrictive interpretation of “armed attack” and Article 51 UN Charter in general show that a rapid escalation of conflicts into unstoppable cycle of force and counterforce shall be prevented. See, e.g., Nolte and Randelzhofer 2012, para 6; Ruys 2014, p. 178. 284

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An alternative would have been to set a lower threshold for punishable use of armed force in Article 8bis of the ICC Statute. For example, States Parties could have punished any—and not only manifest—violations of the prohibition of the use of force.292 This would have provided a broader and early protection for State sovereignty, international peace and individual interests. The “manifest” threshold of Article 8bis of the ICC Statute has been criticized for setting an “extremely restrictive standard”.293 The concern was that the threshold clause would establish unlawful uses of force of two kinds: those that are worth being prosecuted and others that are not. This could ultimately undermine the underlying prohibition of the use of force altogether.294 On the other hand, the confinement of the criminalization to a narrow subset of the violations of the underlying primary norm is consistent with the construction of other crimes under the ICC Statute. They only criminalize serious violations of the underlying international humanitarian law or human rights law.295 It shows the character of criminal law to act as ultima ratio.296 Moreover, it fits better with the position of previous key international law documents dealing with aggression.297 The discussions prior to the adoption of Article 8bis of the ICC Statute also suggest that a certain difference to the unlawful use of force seems to be characteristic of the crime of aggression.298 The aggressive use of force is thus a modality that characterizes the core wrong of the crime of aggression. It limits the protection of sovereignty, international peace and individual interests to the uses of armed force that fulfill the “manifest” threshold of Article 8bis of the ICC Statute with its qualitative and quantitative dimension.

292

For statements by Cuba and Iran on the adoption of the Kampala Amendments, see Barriga and Kreß 2011e, pp. 814 et seq. 293 See, e.g., Paulus 2009, p. 1121. 294 See also Barriga 2012, p. 29; Paulus 2009, p. 1124; Zimmermann and Freiburg-Braun 2021, para 51. 295 See Stahn 2019, p. 101. See also Heinsch 2010, p. 731; Reisinger Coracini and Wrange 2017, p. 322; Zimmermann and Freiburg-Braun 2021, para 51. For the general construction of crimes under international law as secondary norms, see Werle 2010, pp. 1220 et seq. 296 See, e.g., Weigend 2020, para 1. This means that criminal law is to be used as a last resort only after having exhausted other possibilities of reacting to prohibited conduct. 297 On the latter point, see Barriga and Kreß 2011a, para 22. For the considerations underlying the threshold clause, see in detail Kreß 2017, p. 508 et seq. 298 It was discussed, for example, whether the crime of aggression should capture all acts of aggression as covered by UN General Assembly 1974 or be more limited to be in line with the IMT Charter, see Barriga 2012, p. 10 et seq.; Kreß 2017, p. 415. See also Barriga and Kreß 2011d, paras 13 et seq.

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3.6.3 Committed by Persons from the Leadership Circle of a State The third modality limits the protection of State sovereignty, international peace, and individual interests to crimes of aggression committed by persons from the leadership circle of a State. The importance of the leadership clause for the core wrong shines through the wording of Article 8bis(1) and Article 25(3bis) of the ICC Statute in systematic comparison to other crimes under the ICC Statute. The travaux préparatoires to Article 8bis of the ICC Statute and the understanding of the crime of aggression since Nuremberg also support the importance of the leadership clause. Article 8bis(1) of the ICC Statute requires the crime of aggression to be committed by a person “in a position effectively to exercise control over or to direct the political or military action of a State”.299 The leadership nature of the crime of aggression is protected a second time in Article 25(3bis) of the ICC Statute, which ensures that principals and accessories to the crime of aggression need to be in the position of effective control or direction.300 The leadership nature is also suggested by the modes of action in Article 8bis of the ICC Statute, namely “planning, preparation, initiation or execution”. These are predominantly concerned with the phase preceding the actual execution of the State act of aggression. This fits better to masterminds than to ordinary soldiers. The latter can plan, prepare and initiate an isolated shot but they can barely pull the strings of the overall State act of aggression.301 To ensure comparability between the four modes of action, the act of aggression should be “executed” by a person with a comparable degree of influence.302 A systematic comparison to other crimes of the ICC Statute, which lack any explicit or implicit leadership clause,303 underline what States agreed on in the travaux préparatoires of Article 8bis of the ICC Statute. The leadership clause is an “integral part” of the crime of aggression.304 The solid consensus of States on the leadership nature of the crime of aggression305 is unsurprising. It was also part of the understanding of the

299

On the interpretation of control and direction, see Hajdin 2017. See Article 25(3bis) of the ICC Statute is described as “absolute leadership character” of the crime of aggression, see Reisinger Coracini and Wrange 2017, p. 309. See also Kreß and von Holtzendorff 2010, p. 1189. 301 Similarly, Cassese et al. 2013, p. 141. 302 Deducing the leadership nature of the crime from the modes of action has also been prevalent among German scholars with regard to the previous German provision that criminalized the “preparation of aggressive war”. With further references Classen 2017, paras 34 et seq. 303 The hierarchical status of an individual is only a criterion the Office of the Prosecutor may take into consideration in the selection of cases. Office of the Prosecutor 2016, paras 42 et seq. See also Reisinger Coracini and Wrange 2017, p. 312 who consider that due to this policy strategy the leadership clause is “at most a difference of degree, not of quality”. 304 Instead of a mere jurisdictional factor which was also discussed before the crime of aggression was officially included into the ICC Statute, see Barriga and Kreß 2011c, paras 9 et seq. 305 Kreß 2007, p. 855; Zimmermann and Freiburg-Braun 2019, para 78. 300

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crime under the 1996 Draft Code of Crimes of the International Law Commission,306 in the jurisprudence of the post-World War II trials307 and is widely acknowledged by scholars.308 An alternative would have been to criminalize the commission of and participation in a crime of aggression by anyone, including ordinary combatants. One could argue that the protected interests are also violated by the act of the ordinary combatant who, for example, executes the first strike on the foreign territory.309 Drumbl contends that lowering the leadership requirement would create a broader narrative with heightened didactic potential which better reflects the deeply collective nature of the crime of aggression.310 In that regard, it is counter-intuitive to limit criminal responsibility to a small group of top leaders. It requires a collective of persons to make one State use armed force against another State. Broadening the personal scope of the crime of aggression to persons outside the leadership circle could counteract what Drumbl describes as “an odd set of incentives” created by the innocence of a vast array of individuals in aggressive war.311 If law is said to be instrumental and motivate behavior, then those that do not fall within the personal scope of the crime of aggression might be incentivized to partake in the war effort because they would never be criminally responsible for their conduct.312 The focus on leaders has also been criticized in the philosophy of war by proponents of the “revisionist theory”.313 They claim that even ordinary combatants fighting in an unjust war are morally responsible for engaging in violence of wrongful war and should be punished if they meet the appropriate mens rea.314 Revisionists doubt that combatants on either side of a war have equal moral status since the “military action of unjust combatants supports an unjust cause”.315 Even if their killings conform with international humanitarian law, they can be morally wrong when they act in the course of aggression.316 This is why Fabre and Chehtman 306

See Article 16 in International Law Commission 1996 which requires an aggressor to be a “leader or organizer”. 307 For a comparative analysis of the „shape or influence” criterion of the post-World War II trials and the “effective control or direction” threshold of the ICC Statute, see Heller 2007; Hajdin 2017. 308 See Ambos 2022, p. 240 et seq.; Cassese et al. 2013, p. 141; Cryer et al. 2019, p. 303; Kemp 2017, p. 180; Werle and Jeßberger 2020a, paras 1592 et seq. 309 Similarly, Drumbl 2009, p. 318 although he rather favors an inclusion of mid- and upper-level ranks. 310 Ibid., pp. 294, 313. 311 Ibid., p. 316. 312 Ibid., p. 317. 313 For a detailed explanation of the revisionist theory of ius ad bellum, see Lazar 2017. Dannenbaum describes the revisionist theory as nowadays “philosophically dominant”, see Dannenbaum 2019, p. 775. 314 “Punishment” does not necessarily entail lengthy prison sentences, see Fabre 2016, Chapter 7, p. 191; Chehtman 2018, p. 182. Unlike Fabre and Chehtman, most revisionists are not legal but “moral revisionists” only, see Lazar 2017, p. 38. 315 See Lazar 2017, p. 46; Lieblich 2021, p. 580; McMahan 2009, p. 57. 316 Lieblich 2021, p. 580.

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advocate for criminalizing the conduct of those participating in an unjust war who can “be expected to have known that the war…was indeed unjust”,317 or even of a smaller fraction, namely of only “those participating in a knowingly or manifestly unjust war”.318 Due to Russian propaganda and the limited access to foreign media in Russia, however, it is questionable which low-level participants of the Russian aggression against Ukraine in 2022 would have the necessary mens rea from the perspective of revisionists. In any case, it does not suffice under Article 8bis of the ICC Statute to have mens rea with respect to the factual circumstances that established that such a use of armed force was inconsistent with the UN Charter.319 Criminal responsibility is limited to those from the leadership circle of a State. There are good reasons for keeping this leadership clause. First, persons “in a position effectively to exercise control over or to direct the political or military action of a State” are those who have the ability to trigger an act of aggression and to contribute to the decision over war and peace.320 The view that only leaders can bring about a State act of aggression is shared by Ambos who states that the leadership nature is “ultimately a consequence of the collective nature of the crime of aggression as a state crime which can only, if at all, be brought about by the leader(s) of the aggressive state acting in a collective form”.321 Secondly, the far-reaching mode of action of “executing” an act of aggression would otherwise lead to mass punishment.322 This concern was already raised in the judgment of the I.G. Farben trial with regard to the equivalent of “waging” a war of aggression: “Under such circumstances there could be no practical limitation on criminal responsibility that would not include, on principle, the private soldier on the battlefield, the farmer who increased his production of foodstuffs to sustain the armed forces, or the housewife who conserved fats for the making of munitions. Under such a construction the entire manpower of Germany could, at the uncontrolled discretion of the indicting authorities, be held to answer for waging wars of aggression. That would, indeed, result in the possibility of mass punishments.”323

Mass punishments of almost all members of the population of the aggressor State would not accurately reflect their degree of personal responsibility for triggering

317

Fabre 2016, Chapter 7, p. 191. Chehtman 2018, pp. 185 et seq. 319 On the mens rea, see Elements of Crimes for Article 8bis of the ICC Statute, num. 4 and 6. 320 For a similar view, see Boister and Cryer 2008, p. 152; Jescheck 1952, p. 408; McMahan 2009, p. 84 (“Because the authority to make decisions about the resort to war lies with them, so too does the responsibility for the decisions they make about matters of jus ad bellum. Soldiers are merely the instruments the leaders use to implement those decisions.”). 321 Ambos 2022, p. 240. 322 For a similar concern, see Dinstein 2017, para 408; Jescheck 1952, p. 408. 323 See US Military Tribunal Nuremberg, IG Farben Trial (Carl Krauch et al.), Judgment, 30 July 1948, in Allied Control Council No. 10 1949a, pp. 1123 et seq. 318

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the unlawful use of force against another State.324 As stated in the High Command case, these instruments of the policy-makers “cannot be punished for the crimes of others”.325 Mass punishment is not only problematic from the perspective of the principle of culpability326 but also for practical reasons. Financial and human resources would be spent on trials that do not have additional expressive value since the violence of ordinary combatants is captured in the punishment of their leaders.327 Ultimately, the limitation of the crime of aggression to leaders retains the incentive for ordinary combatants to comply with international humanitarian law.328 They are the persons who actually execute the State act of aggression and who would be in a position directly to commit war crimes. If they risked punishment for their mere participation in the execution of an act of aggression, it would not matter how they executed the act. While their exclusion from criminal responsibility for the crime of aggression may incentivize them to partake in the war effort according to Drumbl, it also incentivizes combatants to retain their impunity by adapting their conduct during war to international humanitarian law. Since ordinary combatants are in the direct position to commit war crimes, but unable to decide on war and peace, increasing their incentive for complying with international humanitarian law deserves priority.

3.6.4 Conclusion to the Type of Attack To conclude, the legal interests of sovereignty, international peace and individual interests are not protected under Article 8bis of the ICC Statute from any type of attack. They are only protected from the use of armed force “by a State”, which is considered as “aggressive” and is triggered by a person from the leadership circle of a State. These modalities nuance the core wrong of the crime of aggression and are not yet fully captured in the impairment of the identified protected legal interests. It is possible to impair the legal interests by contrary types of attacks, namely by attacks originating from non-State actors, by use of armed force below the threshold of being manifestly unlawful and serious, and by attacks committed by ordinary combatants. The first limitation of the protective scope to the use of armed force “by a State” implies that all individual executing acts are absorbed at the macro level by the conduct of a State. It places the focus on the uncontroversial core of ius ad bellum, 324

Even Fabre, one of the revisionists who claim that the moral responsibility of those contributing outside the leadership circle should be reflected in law, admits that imprisonment would often be disproportionate, see Fabre 2016, p. 194. 325 US Military Tribunal Nuremberg, High Command Trial (Wilhelm von Leeb et al.), Judgment, 27 October 1948, in Allied Control Council No. 10 1949b, p. 488. 326 Which has been declared by the International Military Tribunal as “one of the most important [legal principles]”, see IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 469. 327 Dannenbaum 2019, p. 784; Fabre 2016, p. 194. 328 Kreß 2009, p. 1134.

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even if this field of law has moved beyond a traditionally State-centric configuration. The preference for limiting the criminal law protection to the core of the ius ad bellum can explain the second modality of the type of attack, namely the “aggression” component. Under Article 8bis of the ICC Statute, this component requires a “manifest” violation of the UN Charter by the “character”, “gravity” and “scale” of the act of aggression. It limits the criminalization to a narrow subset of violations of the primary norms under ius ad bellum, namely to those instances of the use of armed force which are of manifest unlawfulness and intensity. These uses of armed force typically meet the conditions of provisions that regulate lawful counterforce by others under the ius ad bellum. They risk unleashing a cycle of unlawful force and lawful counterforce under the ius ad bellum. Confining the criminalization to a narrow subset of the violations of the underlying primary norm accords with the construction of other crimes under the ICC Statute, the character of criminal law to act as ultima ratio and the position of previous key international law documents. The place of the leadership clause among the aspects that make up the core wrong of the crime of aggression shines through the wording of Articles 8bis(1) and 25(3bis) of the ICC Statute in systematic comparison to other crimes under the ICC Statute. It also corresponds to the travaux préparatoires of Article 8bis of the ICC Statute and the understanding of the crime of aggression since Nuremberg. Limiting criminal law to leaders has been criticized in recent philosophy of war by the revisionists. However, the exclusion of ordinary combatants from criminal responsibility is a response to their lacking ability to bring about a State act of aggression, aims to avoid mass punishment and is said to retain the incentive for ordinary combatants on the ground to comply with international humanitarian law.

3.7 Conclusion This chapter has approached the core wrong of the crime of aggression as defined in Article 8bis of the ICC Statute by identifying the legal interests it aims to protect and the type of attack these interests are protected from. The previous discussion of the protected legal interests has shown that the crime of aggression is a crime which seeks to protect multiple legal interests. Despite the State-centric wording of Article 8bis(2) of the ICC Statute, State sovereignty is not the only protected legal interest. The preambular presumption of the ICC Statute and the nature of aggression as a “crime under international law” strongly suggest that the crime of aggression needs to move beyond the bilateral sphere and protect a collective interest of the international community, such as “international peace”. The protection of “international peace” also corresponds to the conceptualization of the crime of aggression as the response of criminal law to violations of the prohibition of the use of force, the “cornerstone of peace” under the UN Charter. It accords with the name and understanding of the “crime against peace”, its predecessor from the Nuremberg trials. The protection of “individual interests” is more controversial. Individual interests are possibly protected from actual and likely harm through the

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“gravity” qualifier of the “manifest” threshold. They are more certainly protected from abstract harm caused by the shift from the law during peacetime to the law of armed conflicts. The conceptualization of the crime of aggression as a crime that also protects individual interests better addresses the unease of humanized international law. However, the contrast between the uncontroversial protection of sovereignty and international peace and the more controversial integration of individual interests in the protective scope shows that the crime of aggression is not the typical crime against individual interests. These interests are, if at all, protected in the context of macro-criminality committed against collective interests. However, this should not undermine the legitimacy of the crime of aggression. It is not the link to individual interests but rather to fundamental interests of the international community which establishes the legitimacy of crimes under international law. The “type of attack” the identified interests are protected from consists of the use of armed force “by a State”, which is considered as “aggressive” and is triggered by persons from the leadership circle of a State. The required State conduct emphasizes, together with the violation of State sovereignty, the inter-State context of the crime of aggression. Individual executing acts are absorbed at the macro level by the conduct of a State. Focusing on the use of armed force by a State also leads to a significantly reduced protective scope that excludes non-State actor violence, despite its prevalence in today’s conflicts. The “aggressive” component expresses the accessorial but selective nature of the crime of aggression compared to the underlying ius ad bellum. Article 8bis of the ICC Statute criminalizes only uses of armed force of manifest unlawfulness and intensity in comparison to “simple” violations of the underlying primary norms of ius ad bellum. This construction of the crime of aggression as a secondary norm, which criminalizes a narrow subset of violations of the primary norms, accords with other core crimes. The limitation to persons from the leadership circle of a State may be criticized by revisionists in the philosophy of war but reflects, inter alia, the typical ability of such leaders to trigger the overall State conduct relevant in the ius ad bellum. The core wrong of the crime of aggression can thus be described by the manifestly unlawful and serious use of armed force by one State against another that affects State sovereignty, international peace and individual interests—albeit in a less straightforward way—and is triggered by persons from the leadership circle of a State. The next chapter will assess the ability of the domestic law of States to capture the identified wrong of the crime of aggression without implementing the Kampala Amendments.

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Other Documents Review Conference of the Rome Statute (2010) Resolution RC/Res. 6 of 11 June 2010

Chapter 4

Mapping the Normative Gaps Under Domestic Law

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 An Illustration of the Limits of the “Minimalist Approach” to Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Types of Criminal Offenses Under Domestic Lex Lata . . . . . . . . . . . . . . . . . . . . . 4.1.3 The Reference and the Comparative Factors for the Gap Analysis . . . . . . . . . . . . 4.1.4 No Normative Gaps Due to the Direct Applicability of Aggression as a “Crime Under International Law”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Treason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 General Understanding of Treason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Protected Interests: “Oldest Crime Against the State” . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Type of Attack: Force of a Certain Threshold, Attack “from Within”, Owing Allegiance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Other Ordinary Criminal Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Criminal Offenses that Capture Individual Acts that Make Up the State Act of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Protected Interests: Primarily Individual Interests . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 Type of Attack: No Integration in a State Act or of Ius ad Bellum Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.4 The Combatant’s Privilege as an Obstacle? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.5 Conclusion to Other Ordinary Criminal Offenses . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 The “Preliminary Offenses” of Incitement to War and Propaganda for War as Informed by the ICCPR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.1 General Understanding of Incitement to War and Propaganda for War . . . . . . . . 4.4.2 Protected Interests: In Principle the Same as Those Violated by War . . . . . . . . . 4.4.3 Type of Attack: Preliminary Crime, Communicative Conduct, No Leadership Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 The Crime of Aggressive War Modelled on the Nuremberg and Tokyo Precedents . . . . . 4.5.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5.2 Protected Legal Interests: In Principle the Same as Those Protected by the Kampala Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Genocide, Crimes Against Humanity and War Crimes as By-Products of Crimes of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7 Crime of Aggression as a War Crime: “Excessive Attack” as a Gateway for Ius ad Bellum Considerations? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7.2 Protected Interests: Civilians and International Peace . . . . . . . . . . . . . . . . . . . . . . 4.7.3 Type of Attack: Ius ad Bellum Violation Reflected in “Excessive Attack”? . . . . .

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4.7.4 Conclusion to the Crime of Aggression as a War Crime . . . . . . . . . . . . . . . . . . . . 4.8 Crime of Aggression as a Crime Against Humanity: “Other Inhumane Acts” as a Gateway for Ius ad Bellum Considerations? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.1 General Understanding: “Controlled Use of Analogy” for Assessing “Other Inhumane Acts” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.2 Protected Legal Interests: Civilians, Humanity and International Peace . . . . . . . 4.8.3 Type of Attack: Ius ad Bellum Violation Reflected in “Other Inhumane Act”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8.4 Conclusion to the Crime of Aggression as a Crime Against Humanity . . . . . . . . 4.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Instead of implementing the ICC Statute crimes, States could in principle rely on ordinary criminal offenses in domestic trials. This was not an uncommon practice. States without implementation charged génocidaires, for example, with multiple murder. It is a common assumption, however, that aggression cannot be broken down in individual types of conducts. This could render States, without implementation, unable to punish the conduct of aggressors. Chapter 4 tests this general narrative and assesses the extent to which types of criminal offenses under domestic law cover the core wrong of the crime of aggression. Among these types are treason, other ordinary offenses, propaganda for war, the “crime of aggressive war” and other implemented “crimes under international law”. The chapter clarifies that ordinary criminal offenses may cover some effects of an act of aggression. However, any prosecution would send a distortive message about the core wrong committed by aggressors and typically be barred by the combatant’s privilege. Using the core wrong also explains why the prosecution of aggressors for the cumulative or subsequent commission of genocide, crimes against humanity and war crimes is insufficient. The chapter additionally challenges proposals which inject ius ad bellum considerations into the assessment of the vague terms of the war crime of “excessive attack” and of the crime against humanity of “other inhuman acts”. This leaves only States with the Nuremberg and Tokyo version of the “crime of aggressive war” in the position to cover most aspects of the Kampala version of the crime of aggression. Keywords Ordinary criminal offenses · Combatant’s privilege · Propaganda for war · Preliminary offenses crime of aggressive war · War crime of “excessive attack” · Separation of ius ad bellum and ius in bello · Principle of proportionality · Crime against humanity of “other inhumane acts” · Residual clause

4.1 Introduction This chapter assesses the extent to which existing types of criminal offenses under pre-Kampala domestic law1 capture the core wrong of the crime of aggression, as 1

“Pre-Kampala” domestic criminal law refers to the domestic criminal law in States that have not (yet) implemented the crime of aggression as defined in Article 8bis of the ICC Statute which was adopted at the Kampala Conference.

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defined in Article 8bis of the ICC Statute.2 It aims to reveal the common normative gaps under domestic criminal law of States that have not (yet) implemented the definition as adopted at the Kampala Conference. Positively framed, it identifies which aspects of the crime of aggression can be captured by types of criminal offenses under domestic lex lata without the implementation of the Kampala definition. It thereby builds on the findings of the previous chapter, which has identified the core wrong of the crime of aggression based on Article 8bis of the ICC Statute. Normative gaps under existing domestic law are usually mapped out by the legislature before criminalizing a certain conduct.3 As explained in the previous chapter, a similar analysis of normative gaps was conducted by legal experts involved in the drafting of the German bill which concerned the implementation of the ICC Statute crimes after the Rome Conference.4 This led the German government to conclude that it was mostly possible to punish the commission of genocide, crimes against humanity and war crimes based on existing domestic criminal offenses.5 The core wrong of the ICC Statute crimes, however, was not always adequately reflected.6 Some gaps of accountability remained in individual cases for conduct which was punishable under the ICC Statute but not covered under ordinary criminal law.7 The crime of aggression, undefined under the ICC Statute at that time, was not considered. Assessing the ability of domestic law to capture aspects of the crime of aggression is therefore the main task of this chapter.

4.1.1 An Illustration of the Limits of the “Minimalist Approach” to Implementation There are currently 16 domestic implementations of the crime of aggression since the Kampala Conference8 and it is not likely there will be many more in the near future.9 Accordingly, this chapter provides a realistic picture of the typical normative gaps in most domestic legal orders. It is an illustration of the limits of the so-called 2

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 3 For example, German legislative drafts normally start with the definition of the problem, which includes considerations on whether existing criminal offenses that may already cover the wrong. See, e.g., the legislative draft on “upskirting” in Deutscher Bundestag 2020, p. 1. 4 Among the legal experts involved in the drafting process were Claus Kreß and Gerhard Werle who published their gap analysis in Kreß 2000, pp. 9 et seq.; Werle 2000, pp. 756 et seq. 5 See Deutscher Bundestag 2002, pp. 12. See also Kreß 2000, pp. 9 et seq.; Werle 2000, pp. 759 et seq.; Werle 2001, p. 886. 6 Ibid. 7 Ibid. 8 As of March 2022. 9 For an overview of the process of domestic implementation on the crime of aggression, see https:// crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/. Accessed 15 September 2022.

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“zero-solution”10 or the “minimalist approach”11 to domestic implementation. This describes the approach adopted by States that do not incorporate the definitions of the ICC Statute crimes into domestic law. These States would rely on existing criminal offenses under domestic law if their courts ever had to deal with genocide, crimes against humanity, war crimes or the crime of aggression.12 With respect to the former three crimes, it was not uncommon that nonimplementing States prosecuted the conduct as ordinary criminal offenses. This was the practice in Germany, for example, with respect to crimes against humanity and war crimes before such crimes were fully incorporated into domestic law.13 To take full advantage of the principle of complementarity, and to trigger its barring effect vis-à-vis judicial intervention by the International Criminal Court, it suffices to investigate and prosecute alleged aggressors for “substantially the same conduct”.14 The legal characterization is arguably not decisive.15 The ICC Statute does not per se preclude the prosecution of aggression under a different criminal offense. This gives reason to test the current repertoire of non-implementing States. The “minimalist approach” to domestic implementation is expected to be a “zerosolution” in the truest sense of the word. It is a common assumption that the crime of aggression, unlike genocide for example, cannot be “broken down in a list of possible individual types of conducts”,16 such as killing. This would prevent States from punishing the conduct of aggressors based on ordinary criminal offenses. The analysis of the normative gaps aims to test this general narrative. It explores other criminal offenses under domestic law that may serve as a temporary alternative to implementation.

4.1.2 Types of Criminal Offenses Under Domestic Lex Lata Instead of focusing on the substantive criminal law of one State, the chapter conducts the gap analysis based on general types of criminal offenses and their main features. Working with types of criminal offenses involves a degree of generalization. Whenever criminal offenses under domestic law are modelled on a definition under international law, the understanding of this type of criminal offense is generally

10

Werle and Jeßberger 2020, para 471. Hankins 2010, p. 7. 12 Werle and Jeßberger 2020, para 471. 13 See Geneuss 2013, pp. 198 et seq.; Rissing-van Saan 2005, pp. 395 et seq. 14 For the interpretation of Article 17(1) of the ICC Statute, see ICC (AC), Ruto et al., Judgment, 30 August 2011, para. 40; ICC (AC), Gaddafi and Al-Senussi, Judgment, 21 May 2014, paras 63 et seq. 15 See ICC (PTC), Gaddafi and Al-Senussi, Decision, 31 May 2013, paras 85, 88. See also Heller 2012, p. 248. For a critical view of ordinary crimes prosecutions, see Stahn 2012. 16 See from the drafting history of the crime of aggression, Barriga and Kreß 2011a, p. 473. 11

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clearer than would be the case with respect to “ordinary” criminal offenses, such as treason, for which a variety of domestic definitions exists. Among the types of criminal offenses subject to the envisaged gap analysis are: ordinary criminal offenses,17 such as treason and offenses against individual interests (Sects. 4.2 and 4.3); criminal offenses informed by international (criminal) law, such as the preliminary crimes of incitement to aggressive war and propaganda for war (Sect. 4.4); the crime of aggressive war modelled on the Nuremberg and Tokyo precedents (Sect. 4.5); and other “crimes under international law” modelled on the ICC Statute (Sects. 4.6, 4.7 and 4.8).

4.1.3 The Reference and the Comparative Factors for the Gap Analysis These types of criminal offenses under domestic lex lata will be compared to the crime of aggression as defined under Article 8bis of the ICC Statute. To map out the normative gaps left by types of criminal offenses, the chapter builds on the structure and findings of Chap. 3. It has contoured the core wrong of the crime of aggression based on the protected legal interests and the type of attack. The reference in the gap analysis is thus the crime of aggression as defined in Article 8bis of the ICC Statute and the comparative factors are mainly the protected legal interests and the type of attack. According to Chap. 3, the crime of aggression is a crime which seeks to protect multiple legal interests. This includes the protection of State sovereignty, international peace and, arguably, individual interests. The protection of the latter, however, is less pronounced. Article 8bis of the ICC Statute does not explicitly require the use of armed force to have a detrimental effect on individual interests. Their protection can be included in the vague “manifest” threshold, especially with respect to the “gravity” qualifier of Article 8bis of the ICC Statute if it is interpreted as requiring actual or likely harm to individual interests. Individuals may, at least, be protected from the deterioration of their legal position which typically results from the shift from the law during peacetime to international humanitarian law, triggered by the violation of international peace. Their legal position deteriorates under international humanitarian law since it legalizes the killing of combatants and destruction of military objects as well as, in certain circumstances, the killing of civilians and destruction of civilian objects. Overall, the crime of aggression is not a typical crime against individual interests. Individual interests are, if at all, protected in the context of macro criminality, committed against collective interests. The core wrong of the crime of aggression has additionally been described by the type of attack which takes place on these protected legal interests. The attack consists of the use of armed force by a State, encompasses the “aggression” component and 17

“Ordinary” is understood as referring to criminal offenses that usually exist under domestic law without being informed by international law or protecting interests of the international community.

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is committed by persons from the State’s leadership circle. The required conduct “by a State” removes the individual executing acts of ordinary combatants and emphasizes, together with the violation of State sovereignty, the inter-State context of the crime of aggression. The “aggression” component expresses the accessorial, but selective, nature of the crime of aggression in comparison to the underlying ius ad bellum. It protects sovereignty, international peace and, arguably, individual interests from manifestly unlawful and serious uses of armed force. The third aspect of the type of attack emphasizes the limited personal scope. Only persons from the State’s leadership circle can commit the crime of aggression.

4.1.4 No Normative Gaps Due to the Direct Applicability of Aggression as a “Crime Under International Law”? Before analyzing the existing criminal offenses under domestic law, one may consider whether the nature of the crime of aggression as a “crime under international law” renders the creation of a new domestic offense obsolete. Under the assumption that the customary international law crime of aggression was automatically part of domestic law, there would be no normative gaps under the domestic law of States that have not enacted implementing legislation. The definition of “crimes under international law” may provoke such an assumption. To recall, “crimes under international law” are understood as giving rise to individual criminal responsibility directly under international law.18 This means that there is no need first to allow or to oblige States to criminalize the conduct.19 However, domestic constitutional law may prohibit the direct application of “crimes under international law” in domestic proceedings. The obstacle is thus not under international law, but domestic law.20 In most countries, the constitutional principle of legality and democracy require conduct to be criminalized under statutory law. This prevents the direct application of the crime of aggression without any domestic act of criminalization, even if constitutional law may otherwise perceive customary international law as an integral part of domestic law.21 18

Gaeta 2002, p. 65; O’Keefe 2015, para 2.49; Werle and Jeßberger 2020, para 97. Boister 2018, p. 30; Heller 2017, pp. 354 et seq.; O’Keefe 2015, para 2.34; Wilkitzki 1987. 20 Werle and Jeßberger 2020, para 99. 21 In England, for example, the traditional rule is that customary international law automatically forms part of domestic law (“is part of the law of the land”), see Lauterpacht 1939. In the 2006 case R. v. Jones, however, the House of Lords held that the international crime of aggression is not a crime under English law provided Parliament has not created a new criminal offense. The need for Parliament to create a statutory provision is a key expression of democracy. See Lord Bingham in House of Lords, R. v. Jones (Margaret) and others, Appeal Judgment (2006) UKHL 16 (2007) 1 AC 136, para 28. For Lord Hoffmann, see para 60; for Lord Mance, see para 102. See also see R. (Al Rabbat) v. Westminster Magistrates Court, Judgment (2017) EWHC 1969 (Admin), para 23. This requirement draws immediate parallels with the traditional position prevalent in civil law countries. Although Germany shares the monist approach to customary international law, the 19

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A monist approach to customary international law, whereby customary international law forms part of the domestic legal order, does not necessarily mean that customary international law crimes can be applied by domestic courts without prior action of the domestic legislature. This leaves non-implementing States with the normative gaps as identified in in the following sections.

4.2 Treason As one of the oldest crimes against the State,22 treason is an ordinary criminal offense that may have a normative overlap with the crime of aggression, which protects State sovereignty. The conviction in absentia of former Ukrainian President Victor Yanukovych for high treason,23 and for the participation in a Russian crime of aggression,24 illustrates the overlap between these crimes,25 especially in a situation where a person participates in a foreign crime of aggression against their own State.26

4.2.1 General Understanding of Treason Due to the broad variety of domestic definitions of treason,27 the chapter focuses on its typical components. Starting with the German provision for illustrative purposes, high treason28 is committed by “[w]hosoever undertakes, by force or through threa rce, (1) to undermine the continued existence of the Federal Republic of Germany; or (2) to change the constitutional order based on the Basic Law of the Federal Republic of Germany”.29 High treason thus targets the State and requires force (or the threat of force) of a certain threshold to have an undermining or changing potential.30 The provisions on treason that can be found in common law countries often share the superior constitutional principle of legality requires a previous written law for criminalization. For the same discussion prior to the creation of the German Code of Crimes Against International Law, see Satzger 2002, p. 126; Wilkitzki 1987, pp. 460 et seq.; see also Kreß 2000, p. 10. 22 Bützler 2017, p. 173 Head 2011, p. 95. 23 See Article 111 of the Ukrainian Criminal Code. 24 See Article 437 of the Ukrainian Criminal Code. 25 https://www.unian.info/politics/10419795-court-finds-yanukovych-s-guilt-of-high-treason-com plicity-in-war-proven.html. Accessed 15 September 2022. 26 This overlap is not reflected in commentaries to the German provision on high treason which do not list the crime of aggression as a crime treason is likely to be charged with, see Laufhütte and Kuschel 2007b, para 37; Sternberg-Lieben 2019, para 19. 27 For an overview, see Head 2011, pp. 96 et seq.; Reisinger Coracini 2010, pp. 571 et seq.; Sayapin 2014, pp. 218 et seq. 28 In modern use, high treason is often called treason. See “treason” in Stevenson 2010. 29 See Section 81 of the German Criminal Code. 30 Bützler 2017, p. 223; Laufhütte and Kuschel 2007b, para 14; Paeffgen 2017b, para 18; SternbergLieben 2019, para 4.

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target and the threshold requirement. Under Canadian law, “[e]very one commits high treason who, in Canada,…(b) levies war against Canada or does any act preparatory thereto; or (c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.”31 The term used in common law countries to describe the threshold of force is “levy war”.32 Another element that characterizes treason in many States33 is its limited personal scope: It must be found that the perpetrator owes allegiance to the State they commit treason against, for example, by being a national.34 This depicts treason as a crime with an element of betrayal, a crime that penalizes attacks from within. It is a “relational crime, committed only by persons who stand in a specific relationship to others”.35 The element of betrayal corresponds to the linguistic origin of “treason” from the Latin word “tradere” which means handing over.36

4.2.2 Protected Interests: “Oldest Crime Against the State” In comparison to the crime of aggression, treason has a more limited protective scope. Treason is usually described as the oldest crime against the State, and is done so without consideration of protecting international peace, let alone individual interests. The crime of aggression, in contrast, protects State sovereignty not for national security reasons but to ensure the interest of the international community in peace. Prosecuting aggression as treason would thus not adequately reflect the violation of the fundamental interest of international peace.37

4.2.3 Type of Attack: Force of a Certain Threshold, Attack “from Within”, Owing Allegiance As to the type of attack, treason has limited overlap with the crime of aggression. The criminal offense of treason aims to protect the State from force (or a threat of force) of a certain threshold. This is sometimes reflected in the requirement of 31

Section 46 of the Canadian Criminal Code. See, e.g., Section 46 of the Canadian Criminal Code; Section 2381 of 18 US Code; Section 80.1 of the Australian Criminal Code. 33 Under German law, both Germans and foreigners can commit high treason. See Bützler 2017, pp. 226 et seq.; Lampe and Hegmann 2017, para 27. 34 See, e.g., Article 111 of the Ukrainian Criminal Code. For a more general description, see Section 2381 of 18 US Code: “Whoever, owing allegiance to the United States, ...” 35 See Baker 2020; Fletcher 2004, p. 1618. 36 See on “treason” Stevenson 2010. 37 The link to fundamental values of the international community, however, seems to be characteristic of crimes under international law, see Safferling 2011, § 6 para 174; Werle and Jeßberger 2020, para 107. For a critical view, see O’Keefe 2015, paras 2.28 et seq. 32

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“levying war”.38 Although the crime of aggression also requires the use of force, albeit of a different quality and quantity, there are major differences between the crimes. First, the protection of State interests is one-directional when it comes to treason. Treason typically criminalizes attacks only against the prescribing State39 and often requires the perpetrator to owe allegiance to that State. The attack “from within” and the crime of aggression’s requirement of an inter-State use of force is most likely to overlap in one specific situation: where one person in the leadership circle of a State commits treason against their own State by helping another State to aggress their own State.40 The standard case of a State leader who commits the crime of aggression as a principal perpetrator against another State, however, does not seem to fall within the scope of treason. It therefore leaves a normative gap regarding the crime of aggression. A second normative gap arises from the difference in defining the perpetrator. Treason often requires a special relationship between the perpetrator and the State. This is not comparable to the perpetrators of the crime of aggression. They need to be from the leadership circle of a State. Hence, treason does not adequately reflect the leadership clause of the crime of aggression. Overall, treason has a limited overlap with the crime of aggression and misses central aspects of its core wrong. As to the protected legal interests, a prosecution based on the “oldest crime against the State” puts more emphasis on the protection of State interests. These interests are typically only protected from “attacks from within” by persons who owe allegiance to the State.41 This suggests an element of betrayal that is alien to the crime of aggression, except for the situation where a person from the leadership circle of a State assists another State to aggress their State.

4.3 Other Ordinary Criminal Offenses Other ordinary criminal offenses may have the potential to cover certain aspects of the crime of aggression. At least with respect to genocide, crimes against humanity and war crimes, it is mostly possible to punish their commission without the incorporation of the definitions of the ICC Statute into domestic law based on existing ordinary criminal offenses.42 38

See, e.g., Section 46 of the Canadian Criminal Code; Section 2381 of 18 US Code; Section 80.1 of the Australian Criminal Code. 39 The protection is sometimes extended to the allies of a country, e.g., all Commonwealth States. See Reisinger Coracini 2010, p. 572. 40 This also the example given by Reisinger Coracini 2010, p. 572. 41 Under German law, however, foreigners can commit treason even from abroad, see Section 5 no. 2 of the German Criminal Code. 42 See Deutscher Bundestag 2002, p. 12. See also from the legal experts involved in the drafting Kreß 2000, pp. 9 et seq.; Werle 2000, pp. 759 et seq.; Werle 2001, p. 886.

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4.3.1 Criminal Offenses that Capture Individual Acts that Make Up the State Act of Aggression The definition of the crime of aggression gives reason to doubt the existence of any ordinary criminal offense which could cover the use of armed force by a State against another State. At first glance, it seems as if the crime of aggression, unlike genocide for example, cannot be “broken down in a list of possible individual types of conducts”.43 However, the acts of aggression listed in Article 8bis(2) of the ICC Statute indicate which ordinary crimes could cumulatively be committed when, for instance, the territory of another State or its land, sea or air forces are attacked (see Article 8bis(2) litterae (a) and (c) of the ICC Statute) and its territory bombarded (see littera (b)). Depending on the circumstances, these acts of aggression can fulfill the requirements of ordinary offenses against the property (criminal damage, mischief),44 against the person (homicide,45 offenses against physical integrity46 ) or those causing explosion47 or arson.48 For other acts of aggression listed in Article 8bis(2) of the ICC Statute, such as the use of armed force in contravention of an agreement of stationing troops abroad,49 it is more difficult to find a corresponding ordinary criminal offense. An identical problem has been identified regarding other core crimes, such as the war crime of conscripting child soldiers.50 Despite being absorbed by the State act of aggression in Article 8bis of the ICC Statute, individual acts of aggressors can thus theoretically be prosecuted prior to any implementation. Breaking the collective act of aggression down into individual types of conduct, however, would diminish the crime of aggression’s perception as a “prosecutorial magic bullet capable of ensuring the conviction of those at the very top”.51 It would require establishing the chain of attribution from the single act of the ordinary combatant to the State leader who ordered the State act of aggression. Relying on ordinary criminal offenses sends a distortive message about the protected legal interests and the type of attack that make up the core wrong of the crime of aggression (Sects. 4.3.2 and 4.3.3). Moreover, the prosecution of aggressors for ordinary criminal offenses is typically barred by the combatant’s privilege provided the conduct complies with international humanitarian law (Sect. 4.3.4). 43

Barriga and Kreß 2011a, p. 473. See, e.g., Section 303 of the German Criminal Code. 45 See, e.g., Sections 211 and 212 of the German Criminal Code. 46 See, e.g., Sections 223 et seq. of the German Criminal Code. 47 See, e.g., Section 308 of the German Criminal Code. 48 See, e.g., Sections 306 et seq. of the German Criminal Code. 49 See ICC Statute, Article 8bis(2)(e). 50 For more examples for the gaps with respect to certain crimes against humanity and war crimes, see Werle 2000, pp. 756 et seq. See also Broomhall 2003, pp. 91 et seq.; Ferdinandusse 2009, pp. 729 et seq.; Ferdinandusse 2005, pp. 30 et seq.; Nouwen 2013, p. 41; Wilkitzki 1987, p. 467. 51 Schabas 2004, p. 140. 44

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4.3.2 Protected Interests: Primarily Individual Interests Unlike the crime of aggression, the ordinary criminal offenses mentioned above primarily protect individual interests.52 Although the crime of aggression, especially the “gravity” qualifier, could be interpreted as requiring likely or actual harm to individual interests, their protection is less pronounced than the uncontroversial protection of sovereignty and international peace. The crime of aggression is not the typical crime against individual interests. Prosecuting aggressors for ordinary criminal offenses, such as homicide or criminal damage, would thus send a distortive message about their committed wrong and emphasize the effects the act of aggression has on individual interests.53

4.3.3 Type of Attack: No Integration in a State Act or of Ius ad Bellum Considerations The criminalization of aggression serves to protect from the use of armed force “by a State” in manifest violation of the ius ad bellum. However, these aspects of the core wrong are not reflected when charging an aggressor with several murders, criminal damage and arson that were committed in the execution of the act of aggression. The effect on individuals would draw attention to the “gravity” qualifier and neglect the “scale” and the manifestly unlawful “character” of the aggressive use of armed force. Admittedly, the length of the sentence for murder alone could easily compete with the hypothetical sentence for the crime of aggression.54 Such a conviction, however, fails to reflect the inter-State context. It does not reflect the violation of ius ad bellum by a State which is the broader context of the individual acts. In the words of Horder, “[w]hat matters is not just that one has been convicted but of what one has been convicted”.55 In addition, ordinary criminal offenses would fail to acknowledge the leadership nature of the crime of aggression.

4.3.4 The Combatant’s Privilege as an Obstacle? Irrespective of the inability of ordinary criminal offenses to adequately reflect the core wrong of the crime of aggression, a prosecution for ordinary criminal offenses 52

Except for arson, for example, which may also protect public safety. A similar debate takes place when charging as homicide the killings of combatants that result from war crimes on prohibited means of warfare. See Kreß 2000, p. 17. But see, in contrast, Rowe 1991, p. 219; Schwenck 1978, pp. 209 et seq. 54 See also Drumbl 2007, p. 155. 55 Horder 1994, p. 351. 53

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is excluded provided the acts against property, against the person and the use of explosive material comply with international humanitarian law. As explained in Chap. 3, a crime of aggression appears to automatically fulfill the conditions of international humanitarian law to apply.56 The crime of aggression requires, by definition, the use of armed force by a State against another State. It thus fulfills the condition of an “international armed conflict”, which is understood as the resort to armed force by one State against another State.57 The triggered application of international humanitarian law suspends the prohibition of homicide, regarding combatants, and the prohibition of causing damage regarding military objects.58 With respect to the collateral damage caused to civilians and civilian objects, these prohibitions are relaxed.59 This is a consequence of the combatant’s privilege.60 Combatants shall not be held criminally accountable for merely participating in hostilities. The combatant’s privilege normally also covers those in higher ranks.61 Domestic legal orders ensure impunity of combatants for lawful acts of war by relying on different legal concepts. Under German law, the compliance with international humanitarian law is a substantive defense, or to be precise, a ground of justification.62 This means that the combatant who kills another combatant in compliance with international humanitarian law commits homicide but is justified and ultimately cannot be convicted. Other legal orders achieve the same result by providing a procedural “combatant immunity” from prosecution under domestic criminal law for acts that comply with international humanitarian law.63 Hence, the substantive justification of compliance with international humanitarian law and the procedural obstacle of combatant immunity prevent, the prosecution of individuals acts that collectively make up the State act of aggression. It may be possible under domestic law to reject the defense of “compliance with international humanitarian law” for persons from the leadership circle of a State due to their responsibility for the previous unlawful use of armed force. As discussed below, there are legal concepts under domestic criminal law that consider previous unlawful conduct in the assessment of defenses. This can even lead to their rejection. In addition, the German Red Cross argued that the crime of aggression is, in any case, 56

See Chap. 3, Sect. 3.5.5. For a different opinion, see Einarsen 2018. ICRC 2008, p. 1. See also Fleck 2021, Section 3.02, para 1 whereby the law of armed conflict applies from the first moment that force is used by one State against another State (“first-shot” theory). 58 See Chap. 3, Sect. 3.5.5. 59 See Chap. 3, Sect. 3.5.5. 60 On the combatant’s privilege or “privilege of belligerency”, see Solis 2016, p. 46. 61 See its expert opinion on the German implementing bill of the crime of aggression, Deutsches Rotes Kreuz 2019, p. 19. 62 See, in detail, Zimmermann 2010, p. 511 et seq. See also Ambos 2010, p. 1727; Jakobs 1991, p. 457. Another possibility is to deny the fulfillment of the actus reus by referring to the “socially adequate” nature of acts that comply with international humanitarian law, see Merkel 2012, pp. 1140 et seq. 63 This seems to be the case under the US Law of War Manual, see US Department of Defense 2015, pp. 105 et seq.; Rowe 1991. 57

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an exception to the combatant’s privilege which normally also covers higher ranking combatants.64 Is there a difference between the exception to the combatant’s privilege being a new criminal provision called the “crime of aggression” and the direct inapplicability of the combatant’s privilege for aggressors to charges of ordinary criminal offenses? Both avenues would reflect the “forgotten deaths and destruction”, caused by the aggressive use of armed force but forgotten due to the legalization by international humanitarian law. The crime of aggression would reflect them collectively under the “gravity” qualifier. In contrast, they would be reflected individually in charges of homicide, criminal damage and arson, which would not be excluded by the combatant’s privilege for aggressors. Under domestic criminal law, blameworthy or unlawful previous conduct can negatively affect the invocation of the defense for the subsequent conduct.65 The right to self-defense under German criminal law, for example, is denied for an intentional provocation of the circumstances of self-defense and is restricted in case of a negligible one.66 Blameworthy previous conduct can also have a detrimental effect on the balancing of interests under the defense of “justifying necessity” under German criminal law.67 The German provision on “excusing necessity” even explicitly excludes its invocation where the person has caused the danger that led to the circumstances of necessity.68 A related concept that takes into account blameworthy previous conduct is the “actio libera in causa” (literally: an action which is free in its origin). It claims that it would be an abuse of rights if the perpetrator could rely on their state of incapacity during the commission of a crime despite having previously created the conditions for it, for example by excessive drinking.69 Ohlin perceives the idea of “actio libera in causa” or the general idea of the blameworthy creation of the conditions of one’s own defense to be penalized in the crime of aggression.70 An aggressor who ordered a bombardment in violation of ius ad bellum has caused, by this unlawful previous conduct, the conditions for their own defense, namely the application of the international humanitarian law which justifies certain killings and the destruction brought about by the bombardment. To consider the blameworthy creation of the conditions of their own defense, the aggressor could then be charged with homicide even if the killing of the persons complied with international humanitarian law. Although the idea that previous unlawful conduct can negatively affect the invocation of a defense is not alien to domestic criminal law, it is far from being a principle 64

See its expert opinion on the German implementing bill of the crime of aggression, Deutsches Rotes Kreuz 2019, p. 19. 65 For an overview in English, see Herrmann 1986; Ohlin 2017, pp. 1456 et seq.; for an overview of the related concepts under American law, see Robinson 1985. 66 Engländer 2020, paras 82 et seq.; Erb 2017a, paras 225 et seq. 67 Erb 2017b, paras 140 et seq.; Neumann 2017, para 95; Roxin 2006, p. 752 et seq. See also Herrmann 1986, p. 758. 68 See Section 35 of the German Criminal Code. 69 Streng 2017, paras 114 et seq.; Wolters 2016, paras 30 et seq. For a contribution in English, see Herrmann 1986, pp. 763 et seq. For a broader perspective on the actio libera in causa, see Dimock 2013; Hruschka 1986, pp. 687 et seq. 70 Ohlin 2017, p. 1454.

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of general application. Assuming such a general principle, which is not explicitly stipulated in criminal codes, would be an interpretation in malam partem. It would be to the detriment of the defendant and conflict with the principle of legality as well as the underlying separation of powers. It is not up to the courts but to the legislature to address this unsatisfactory situation. The legislature can create a criminal provision that specifically addresses this situation, by criminalizing the crime of aggression or by establishing a respective exception to the defense of compliance with international humanitarian law.71

4.3.5 Conclusion to Other Ordinary Criminal Offenses Under domestic lex lata, it is possible to prosecute the individual acts, that collectively make up the State act of aggression, as ordinary criminal offenses. However, cumulative charges for multiple homicides, criminal damage, and arson do not adequately reflect the core wrong of the crime of aggression. The sum of ordinary criminal offenses would overemphasize the effects of the use of armed force on individual interests. The protection of individual interests is not obvious under the crime of aggression and integrated into the broader context of manifestly illegal inter-State use of armed force. Neither the harm to the interests of the international community nor the crime of aggression’s leadership clause would be reflected if labelled under an ordinary criminal offense. Ordinary criminal offenses would also miss certain advantages of the label of a “crime under international law”, such as the non-applicability of statutory limitation.72 While the inability of ordinary criminal offenses to adequately reflect the core wrong has also been deplored for other “crimes under international law”, the combatant’s privilege is an aggression-specific obstacle. Prosecuting the conduct of aggressors as ordinary criminal offenses is barred by the combatant’s privilege if the conduct complies with international humanitarian law. Assuming an exception to the combatant’s privilege due to the previous unlawful use of armed force which created the conditions for the defense of the aggressor would be an interpretation in malam partem – to the detriment of the defendant. This conflicts with the principle of legality and the underlying separation of powers.

71

In legal orders where the compliance of “the laws of war” leads to the application of a procedural combatant immunity to charges of ordinary criminal offenses, courts could theoretically interpret “the laws of war” as covering both ius in bello and ius ad bellum. The common legal understanding of “laws of war”, however, is restricted to the former. 72 See on the benefits of the label of “crimes under international law”, Stahn 2012, pp. 186.

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4.4 The “Preliminary Offenses” of Incitement to War and Propaganda for War as Informed by the ICCPR Apart from ordinary criminal offenses, there are crimes, informed by international law or international criminal law, which could allow States to cover aspects of the crime of aggression. Taking their inspiration from international (criminal) law, the protective scope of these offenses promises to include legal interests of the international community. The domestic crimes of incitement to war and propaganda for war73 can be described as aggression-related “preliminary offenses”, informed by the prohibition of propaganda for war under Article 20(1) of the ICCPR.74 They have some overlap with the planning or preparation of an act of aggression that amounts to a crime of aggression.

4.4.1 General Understanding of Incitement to War and Propaganda for War Incitement to war and propaganda for war are two examples of “preliminary crimes”75 as they constitute “early penalizations” of conduct in the phase preceding the execution of the act of aggression.76 The commission of these crimes does not require the outbreak of war. In contrast to incitement,77 propaganda is considered to be broader and “more insidious” as it “creates the atmosphere in which direct incitement can more effectively bring about desired results”.78 Propaganda can also extend over a longer period prior to the actual war of aggression to psychologically prepare people for war in general. By contrast, incitement seems to be temporally closer to a specific war of

73

For an overview of States with a provision on incitement to war or propaganda for war, see Kearney 2007, pp. 135 et seq.; Reisinger Coracini 2017, pp. 1063 et seq.; Sayapin 2014, pp. 234 et seq. 74 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). 75 For an understanding of preliminary offenses under English law, see Cecil Turner 2013, pp. 94 et seq. In comparison, see the discussion of the concept of inchoate offenses in Cassese et al. 2013, pp. 199 et seq.; Horder 2019, pp. 492 et seq. 76 See, e.g., the commentary to the German norm, Paeffgen 2017a, paras 1, 2, 12. 77 See in general on incitement, de Hemptinne 2019, pp. 392 et seq. 78 Kearney 2009, para 4.

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aggression.79 The difference is reflected in the discussions that preceded the adoption of the prohibition of propaganda for war in Article 20(1) of the ICCPR.80 Several States have criminalized incitement to aggressive war or propaganda for war.81 A considerable number are States within the former Soviet sphere of influence. This is unsurprising as the Soviet Union was a strong proponent of the inclusion of the prohibition of propaganda for war in the ICCPR.82

4.4.2 Protected Interests: In Principle the Same as Those Violated by War Compared to the legal interests protected by the criminalization of aggression, the crimes of incitement to war and propaganda for war do not seem to lead to a gap in protection. In principle, it can be assumed that the preliminary crimes of “incitement to war” and “propaganda for war” protect the same interests as those violated by war.83 This is why they seem to protect State sovereignty, international peace and possibly individual interests. Occasionally, however, the protective scope of the crimes of incitement to war or propaganda for war is more limited. Some States require the war to have a link to the State itself,84 or locate the crimes in sections on either treasonable offenses or offenses against the State.85 This can be described as a more “egoistic” protection of international peace. It is closer to crimes directed against the national security than against international interests.86

79

“Propaganda” also covers the “antecedent form of speech”, see Kearney 2009, para 11. But see Nowak 2005, para 11, who states that “propaganda must be specific enough for evaluating whether it relates to a war of aggression or not” even if “there is no objective, concrete threat of war”. 80 See Kearney 2009, para 11. 81 For an overview of States with a provision on incitement to war or propaganda for war, see Kearney 2007, pp. 135 et seq.; Reisinger Coracini 2017, pp. 1063 et seq. 82 See Kearney 2007, p. 135. 83 See Paeffgen 2017a, para 3, who assumes that the crime of incitement to aggressive war protects the same legal interest as the crime of aggressive war. 84 See, e.g., Section 407 of the Czech Criminal Code: “Whoever publicly incites an offensive war, in which the Czech Republic is to participate”; Chapter 12, Section 2 of the Finnish Criminal Code: “If a person in Finland or a Finnish citizen outside of Finland, during an ongoing or imminent military crisis or international political crisis, for the purpose of causing Finland to be at war or the target of a military operation (1) publicly exhorts a foreign state to carry out an act of aggression against Finland or Finland to carry out an act of aggression against a foreign state”. 85 See Finnish Criminal Code, Chapter 12: “Treasonable Offences”; Australian Criminal Code, Part 5.1.: “Treason and related offences”; Nicaraguan Criminal Code, Title XIII, Chapter 1; “Treason, Espionage, Revelation of State Secrets”. 86 See Schroeder 1969, p. 47, who describes this as an “egoistic” protection of the State and not the protection of international peace.

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4.4.3 Type of Attack: Preliminary Crime, Communicative Conduct, No Leadership Clause Regarding the type of attack, incitement to war and propaganda for war differ considerably from the crime of aggression. A normative gap is linked to the nature of incitement to aggressive war or propaganda for war as “preliminary crimes”. They are crimes in the phase preceding the execution of the act of aggression. A conviction for incitement and propaganda does not necessarily mean that there has been use of armed force by a State. This is, however, a key part of the core wrong of the crime of aggression.87 The German provision on the incitement to a crime of aggression,88 for example, does not require that a crime of aggression is executed.89 Incitement and propaganda provide early protection for legal interests from potential harm but do not reflect whether harm has occurred. A second normative gap vis-à-vis the crime of aggression is that preparatory acts beyond the form of communicative conduct are neglected, such as the production of armaments or the drafting of a military plan. The crime of aggression can be committed by the “planning, preparation, initiation, or execution” of an act of aggression. The crime does not specify the conduct that could fall under the four modes of action.90 By contrast, the provisions on incitement and propaganda cover a fraction of the two modes of actions of “planning” and “preparation”. They cover communicative conduct in the sense of “psychological armament”.91 In the words of the Soviet Judge Nikitchenko of the International Military Tribunal at Nuremberg, “propaganda was invariably a factor in preparing and conducting acts of aggression and in training the German populace to accept obediently the criminal enterprises of German fascism”.92 Similar language was used in the follow-up trial against Weizsäcker et al. (the so-called “Ministries Case”) where the press chief of the Nazi Party was accused of the “participation in the psychological planning and preparation for wars of aggression”.93 Propaganda for war was perceived in these trials as a necessary preparatory act and part of the planning of a war. It appeared to be “as necessary to the Hitlerites for the realization of their plans as were the production of armaments and the drafting of military plans”.94 The comparison to acts of military preparation shows that propaganda for war and a fortiori incitement to war – leave 87

See the requirement that the act of aggression “was committed” in the ICC Elements of Crimes for Article 8bis of the ICC Statute, num. 3. 88 See Section 80a of German Criminal Code. 89 Laufhütte and Kuschel 2007a, para 4. 90 See ICC Statute, Article 8bis. 91 Classen 2017, para 8. See also Whitton and Larson 1964, p. 39 who describe propaganda as “psychological warfare” or “indirect aggression”. 92 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 538. 93 See the indictment in the Ministries case, US Military Tribunal Nuremberg, The United States of America vs. Ernst von Weizäcker et al., in Allied Control Council No. 10 1949, p. 26. 94 Ibid., p. 39.

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gaps for non-communicative forms of planning and preparation outside the area of formation of public opinion. A third normative difference to crimes of aggression can arise from a different understanding of what kind of illegal use of force is prevented. Compared to crimes of aggression that require a manifest violation of the UN Charter,95 the incitement to war or propaganda for war can cover preparatory acts to less serious forms of illegal use of force. In that regard, incitement to war and propaganda for war do not leave a gap but a surplus in protection. Estonia, for example, requires an incitement to “war or other use of arms in violation of the generally recognized principles of international law”.96 A fourth normative difference is the lack of a leadership clause.97 This lack allows persons like Hans Fritschke, head of the Radio Division of the Reich Ministry of Propaganda, to be convicted. Fritschke was acquitted of the charges of crimes against peace in light of his being merely a “secondary figure”, a “conduit” of Goebbels,98 who had never achieved “sufficient stature to attend the planning conferences which led to aggressive war”.99 It also allows the conviction of persons with no link to any ministry and who are unable to direct or control the military or political action of a State, such as journalists.100 Potential risks to the right to freedom of expression is the reason why many Western countries were skeptical about the adoption of Article 20(1) of the ICCPR which obliges States to prohibit propaganda for war.101 To conclude, incitement to war and propaganda for war protect, in principle, the same legal interests as the crime of aggression but differ as to the type of attack from which these interests are protected. Despite a certain overlap with the commission of the crime of aggression in the variation of “planning” or “preparation”, incitement to war and propaganda for war neglect other modes of actions beyond the communicative forms of planning and preparation. They do not adequately reflect the horrors of the execution phase. Due to the lack of a leadership clause, convictions for incitement to war and propaganda for war would also fail to reflect the special responsibility of State leaders.

95

Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter). 96 See Section 92 of Estonian Criminal Code. See also “public calls to an aggressive war or an armed conflict” in Article 436 of the Ukrainian Criminal Code. 97 See, e.g., the use of the term “whoever” in Section 80a of the German Criminal Code; Article 89(3) of the Croatian Criminal Code; Article 105(4) of the Slovenian Criminal Code. 98 Whitton and Larson 1964, p. 169. 99 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 526. But see the dissenting opinion of Judge Nikitchenko, p. 538. 100 See, e.g., the ultimately acquitted publisher of a scientific magazine in Regional Court Köln, Judgment, 9 July 1980, in Neue Zeitschrift für Strafrecht 1981, 261. 101 13 reservations were submitted upon the adoption of Article 20(1) of the ICCPR, all from Western democracies. On the reservations, see also Kearney 2007, pp. 156 et seq.; Nowak 2005, Article 20, paras 22 et seq.

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4.5 The Crime of Aggressive War Modelled on the Nuremberg and Tokyo Precedents Only minor normative gaps to the crime of aggression as defined in Article 8bis of the ICC Statute are left by its international predecessor, the “crime of aggressive war”, which was modelled on the Nuremberg and Tokyo precedents. States that have this type of criminal offense in their domestic law have the potential to cover most aspects of the modern version of the crime of aggression.

4.5.1 General Understanding Domestic criminal provisions on aggressive war largely copy the language of the Charters of the International Military Tribunals at Nuremberg and Tokyo, as well as of Control Council Law No. 10. The Charters of the Nuremberg and Tokyo Tribunals refer to the “crime of aggressive war”, or to be specific, “crimes against peace” as the “planning, preparation, initiation or waging of a [declared or undeclared] war of aggression, or a war in violation of international [laws,] treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”.102 The Control Council Law No. 10, which provided the basis for follow-up trials, employed a similar description.103 States mirrored the language of these provisions and called the crime “war of aggression”,104 “aggressive war”105 or “crime against peace”.106 102

See Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter), Article 6(a); Charter of the International Military Tribunal for the Far East, Directive of Douglas MacArthur, 19 January 1946 (IMTFE Charter), Article 5(a) whose definition corresponds to the additions in brackets. 103 Article II(1)(a) of the Control Council Law No. 10 on the Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity: “Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” 104 See Article 404 of the Georgian Criminal Code; former Article 157 of Croatian Criminal Code; former Section 91 of the Estonian Criminal Code; former Section 80 of the German Criminal Code; Article 117 of the Polish Criminal Code; Article 386(2) of the Serbian Criminal Code; Article 341 of the Vietnamese Criminal Code. 105 See Article 384 of the Armenian Criminal Code; Article 100 of the Azerbaijanian Criminal Code; Article 122 of the Belarusian Criminal Code; Article 409 of the Bulgarian Criminal Code; Article 160 of the Kazakhstani Criminal Code; Article 442 of the Montenegrin Criminal Code; Article 395 of the Tajikistani Criminal Code; Article 353 of the Russian Criminal Code; Article 437 of the Ukrainian Criminal Code; Article 151 of the Uzbekistani Criminal Code. 106 See Section 3(2)(b) of the Bangladeshi International Crimes (Tribunals) Act; Section 72 of the Latvian Criminal Code.

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Regarding the protected legal interests and the type of attack, the Nuremberg and Tokyo version of the “crime of aggressive war” leaves only minor normative gaps to the Kampala version of the crime of aggression.

4.5.2 Protected Legal Interests: In Principle the Same as Those Protected by the Kampala Definition The legal interests protected by the provisions that rely on the Nuremberg and Tokyo precedents do not differ much from the crime of aggression as defined in Article 8bis of the ICC Statute. International peace is protected from violations through an attack against State sovereignty. While the definitions of the IMT Charter and of the IMTFE Charter do not refer to individual interests, there is an implicit allusion made in the Nuremberg judgment. The International Military Tribunal at Nuremberg described the “crime against peace” as containing within itself “the accumulated evil of the whole”.107 This is as if it contained all horrors subsequently committed, including those against individuals. It further deplored that the war initiated against Poland was “most plainly an aggressive war, which was to develop in due course into a war which embraced almost the whole world, and resulted in the commission of countless crimes, both against the laws and customs of war, and against humanity”.108 Despite the reference to the devastating effect of the aggressive war on humans in the judgment, the more explicit focus is on the violation of peace through an attack against State sovereignty. Some States modified the protective scope by requiring a “risk of war” for their State in their domestic provision.109 This addition could render the domestic version of the crime of aggressive war into a crime which rather protects national security interests than the interests of the international community. The former German provision, for example, was interpreted as protecting “primarily the security of Germany” while international peace is only “partially” and “indirectly” protected.110

4.5.2.1

Type of Attack: Differences Due to Animus Aggressionis and Leadership Clause

Despite some subtle normative differences, the “crime of aggressive war” largely covers the aspects of the Kampala version of the “crime of aggression” that describe the punishable type of attack which takes place on the protected legal interests. 107

IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. Ibid., p. 434. 109 See, e.g., former Article 406 of the Czech Criminal Code (“causes to the Czech Republic danger of war”); former Section 80 of the German Criminal Code (“creates a danger of war”); Section 271 of the Paraguayan Criminal Code. 110 See Classen 2017, para 1. 108

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The use of armed force “by a State”, the “aggression” component and the leadership nature of the crime of aggression are reflected under the Nuremberg and Tokyo crime of aggressive war. The “crime of aggressive war” is based on State conduct. This can be inferred from the Nuremberg and Tokyo trials. This crime was the main charge and brought about the revolutionary idea that “[c]rimes against International Law are committed by men, not by abstract entities”.111 This idea is premised on the conduct of the State, which did not prevent the Tribunals from holding individuals accountable. The same can be said for the “aggression” component. Although a specific definition is hard to find in the Charters of the International Military Tribunals at Nuremberg and Tokyo, the post-World War II case law suggests that the “aggression” component of the crime of aggressive war requires an animus aggressionis.112 In contrast, at the Kampala Conference, States Parties did not restrict the punishable use of armed force to that conducted with the collective intent of annexing territory or occupying the victim State.113 Due to a different understanding of the “aggression” component, domestic implementations of the Nuremberg and Tokyo “crime of aggressive war” offer a slightly lower degree of protection compared to provisions that copy the Kampala definition.114 The requirement of an animus aggressionis for wars of aggression leaves a normative gap by excluding some crimes of aggression.115 Another normative gap may exist for acts of aggression “short of war”, which do not lead to a full-fledged aggressive war. They would not fall into the scope of domestic norms of the “crime of aggressive war”. However, depending on the interpretation of the “manifest” threshold and its three qualifiers (“character, gravity and scale”), they could fall into the scope of domestic implementations of the Kampala definition.116 When it comes to the personal scope of application and the leadership clause, domestic implementations of the “crime of aggressive war” are broader than the Kampala successor. The post-World War II jurisprudence on aggression included political, military and economic leaders, provided they fulfilled the “shape or influence” requirement.117 States adopted a different leadership clause and require “control or direction” for the purpose of the ICC Statute.118 Although States Parties were 111

IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447. See Brownlie 1963, pp. 208 et seq. (“war of aggression had as its object the acquisition of territory or the domination, i.e. de facto control, of other states”); McDougall 2017, p. 67 (“war with the object of the occupation or conquest of the territory of another State or part thereof”). See also Kreß 2017, p 526 et seq.; Werle and Jeßberger 2020, para 1597. 113 Germany made two proposals in 1998 and in 2000 that required the act of aggression to pursue a specific collective objective. In detail, see Kreß 2017, p. 532. 114 See McDougall 2021, p. 194. In contrast, Dinstein 2017, pp. 144 et seq., who considers both to be similar in scope. 115 E.g., bombing cities without aiming to establish an occupation or annexing territory. See Clark 2002, p. 878. 116 Kreß 2017, pp. 516 et seq. who argues that the Tokyo precedents show that a war of aggression does not require full-scale hostilities, but accept “limited war”. 117 See McDougall 2017, pp. 102 et seq. 118 See ICC Statute, Article 8bis. 112

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of the opinion that judges would consider the Nuremberg precedent,119 it seems as if the “control or direction” threshold is higher and excludes persons that would still fall under the “shape or influence” threshold.120 The concern of the drafters of Article 8bis of the ICC Statute was that the “shape or influence” standard could capture an excessively large number of persons, especially in democratic States where parliament decides on international military exercises.121 For the purpose of this chapter, however, the broader personal scope of the provisions on the war of aggression does not leave a normative gap. It rather leaves a surplus in terms of the potential range of aggressors. To conclude, the existing domestic provisions that criminalize wars of aggression in line with the post-World War II jurisprudence leave some normative gaps by not covering armed force which lacks an animus aggressionis. However, they offer a surplus in terms of the personal scope of application and overlap significantly with the definition of Article 8bis of the ICC Statute.

4.6 Genocide, Crimes Against Humanity and War Crimes as By-Products of Crimes of Aggression States may be able to cover some aspects of the conduct of aggressors, even if they have only incorporated the definitions of the ICC Statute for genocide, crimes against humanity and war crimes into domestic law. They could still prosecute aggressors for the cumulative or subsequent commission of genocide, crimes against humanity and war crimes. This would emphasize the description of the crime of aggression as being the “mother of all crimes”.122 As the International Military Tribunal at Nuremberg put it, the crime of aggression “contains within itself the accumulated evil of the whole”.123 Any element of endangerment would be ignored and States would focus on the wrong—the accumulated evil—once the risk has materialized.124 Since the “gravity” qualifier of the crime of aggression is understood as referring to the effects of the act of aggression, the prosecution for genocide, crimes against humanity and war crimes could cover this aspect of the crime of aggression. Setting the prosecutorial focus on other core crimes that are caused as a result of a crime of aggression is a suggestion that is also made regarding the prosecution of the crime of aggression at the international level. The skepticism expressed by some States towards establishing a special aggression tribunal for Ukraine suggests there is an alarming tendency to be content with holding aggressors responsible 119

Barriga and Kreß 2011b, para 9. See in detail, Hajdin 2017; Heller 2007. 121 Barriga 2010, p. 8; McDougall 2021, p. 232. 122 For the description of the crime of aggression as the “mother of all crimes”, see Cryer et al. 2019, pp. 302 et seq. For a critical assessment of this description, see Mégret 2017, pp. 1416 et seq. 123 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. 124 See also Bassiouni 2018, p. 57. 120

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for other core crimes.125 Long before the Russian invasion, Bassiouni suggested to “leave aggression in the category of a legal concept in limbo” and to direct new efforts toward other international crimes which are the outcome or consequence of aggression.126 Using the harm principle, Creegan also favors the punishment of war crimes, crimes against humanity and genocide.127 According to the harm principle, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”.128 Where no injury results from the act, the act should be punished less or even be disregarded.129 There are similar discussions in countries where the theory of protected legal interests forms the basis of criminal law. Criminalizing conduct that has not caused harm to a protected legal interest is subject to criticism.130 Both the harm principle and the theory of protected legal interests, however, now accept that conduct should be criminalized where there is a risk of harm to others,131 or where a collective interest is violated. As to the protected legal interests, there is an overlap between genocide, crimes against humanity, war crimes and the crime of aggression. The Preamble of the ICC Statute assumes that they all protect the “peace, security and well-being of the world”. As explained in Chap. 3, however, these interests are protected from different types of attack by each crime.132 States that have only implemented genocide, crimes against humanity and war crimes into domestic law could prosecute these crimes that are committed cumulatively with, or subsequently to, the crime of aggression. These prosecutions, however, could not capture the manifest violation of ius ad bellum. This can only be captured by prosecutions for the crime of aggression. Moreover, the prosecution for genocide, crimes against humanity and war crimes would ignore the violation of State sovereignty. It would fail to condemn all effects on individuals that result from the act of aggression. Combatants and civilians that were lawfully killed in the conflict between Ukraine and Russia, for example, would be a forgotten cost of war. Their deaths, however, ultimately result from the initial unlawful use

125

They can be prosecuted by the ICC, see https://www.icc-cpi.int/ukraine. E.g., the British Minister of Foreign Affairs at that time expressed concerns that setting up an additional tribunal for prosecuting Russian leaders for the crime of aggression could divert resources away from the vital evidence collecting for war crimes. See https://www.theguardian.com/world/2022/apr/ 29/uk-to-send-investigators-to-ukraine-to-gather-evidence-of-war-crimes-truss-says. Accessed 15 September 2022. The ICC Chief Prosecutor called for a “focus on mobilizing … what already exists” and raised concern about “self-indulgen[ce] in creating things that we’d like,” rather than “putting [what we already have] into action effectively. See https://www.pbs.org/newshour/show/int ernational-criminal-courts-top-prosecutor-discusses-justice-for-russian-war-crimes. Accessed 15 September 2022. 126 Bassiouni 2018, p. 57. 127 Creegan 2012, pp. 62 et seq. 128 Mill 1959, pp. 21 et seq. 129 Creegan 2012, p. 62. 130 Achenbach 2011, p. 152; Hassemer 1989, pp. 557 et seq. 131 Ambos 2015, p. 313; Simester and von Hirsch 2011, p. 44. 132 See Chap. 3, Sect. 3.2.3. See also Werle and Jeßberger 2020, para 121.

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of armed force which triggered the permissive regime of international humanitarian law. Although the conviction of aggressors for the commission of other implemented ICC Statute crimes fails to reflect aspects of the core wrong of the crime of aggression, it may still serve the purpose of “somehow” punishing them.133 Regarding crimes under international law, however, it is generally questionable whether the length of any prison sentence can adequately reflect the enormous scale of wrongdoing.134 This is why the proper label for the committed wrong of aggressors matters and their conviction of any other core crime appears unsatisfactory.

4.7 Crime of Aggression as a War Crime: “Excessive Attack” as a Gateway for Ius ad Bellum Considerations? Instead of prosecuting aggressors for the cumulative or subsequent commission of genocide, crimes against humanity and war crimes, States could rely on the implemented war crime of “excessive attack”, modelled on Article 8(2)(b)(iv) of the ICC Statute. The potential to capture aspects of the crime of aggression on the basis of a domestic incorporation of the war crime of “excessive attack”135 depends on whether ius ad bellum considerations can play a role in the interpretation of the vague term of “excessive attack”.136 The following sections build on academic writings that have explored this possibility under Article 8(2)(b)(iv) of the ICC Statute.137 It will be assumed that States have implemented this specific war crime into domestic law without modifications.

133

For a critical view in a similar discussion, see Werle 2000, pp. 757 et seq. Cryer et al. 2019, p. 31. 135 See the study of the International Committee of the Red Cross, which lists over 30 States which have domestic legislation that implements the corresponding principle of proportionality (listed as Rule 14): https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule14_sectiona. Accessed 15 September 2022. 136 A similar reasoning could apply to war crimes that contain the normative element of “military necessity”, such as Article 8(2)(a)(iv) and Article 8(2)(b)(xiii) of the ICC Statute. 137 An essay competition hosted by the Frederick K. Cox International Law Center at Case Western Reserve University School of Law in honor of Benjamin Ferencz, US Chief Prosecutor at the Einsatzgruppen Trial has generated the following contributions: VanLandingham 2016; Harris 2016; Otieno et al. 2016. 134

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4.7.1 General Understanding The war crime of “excessive attack” applicable in international armed conflicts is defined in Article 8(2)(b)(iv) of the ICC Statute and verbatim domestic implementations as: “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.138

4.7.1.1

Secondary Norm to the Principle of Proportionality

The war crime of “excessive attack” can be understood as the secondary norm under international criminal law that criminalizes certain violations of the principle of proportionality.139 This principle is the corresponding primary norm under international humanitarian law and prohibits “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”140 It requires a balancing exercise, comparing the anticipated civilian damage on the one side with the anticipated military advantage on the other side.141 The principle of proportionality serves to limit incidental, also called “collateral”, civilian damage.142 The primary norm of the principle of proportionality as well as the secondary norm of Article 8(2)(b)(iv) of the ICC Statute and its domestic implementations do not deal with attacks that primarily target the civilian population or civilian objects. This would already violate the principle of distinction and fulfill the requirements of other war crimes.143

4.7.1.2

Modifications of the Principle of Proportionality Under the Secondary Norm

The war crime of “excessive attack”, as understood in Article 8(2)(b)(iv) of the ICC Statute and its verbatim domestic implementations, slightly modify the balancing 138

On Article 8(2)(b)(iv) of the ICC Statute, see Dörmann 2004, pp. 161 et seq.; Schabas 2016, pp. 263 et seq. 139 On the proportionality principle, see Rule 14 in Henckaerts and Doswald-Beck 2009, pp. 46 et seq.; Cannizzaro 2015. See also Dinstein 2013; Fenrick 1982. 140 See Additional Protocol I, Article 51(5)(b), Article 57 (2)(a)(iii), Article 85(3)(b). 141 Dörmann 2021, Section 8.08 para 8. 142 This is the civilian damage which comes together with (Latin prefix “co-” for “with”) and at the side of (Latin word “latus” for “side”) the otherwise legally targeting of military objects. See also Dinstein 2013, p. 75 who uses the terms “collateral”, “incidental” and “ancillary” interchangeably. 143 See ICC Statute, Article 8(2)(b)(i) and (ii).

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exercise of the underlying principle of proportionality. Among the modifications of Article 8(2)(b)(iv) of the ICC Statute are the addition of environmental damage and the raised threshold of criminality. The latter requires the anticipated civilian and environmental damage not only to be “excessive” compared to the anticipated military advantage, but to be “clearly” excessive.144 It is thus more difficult to violate the secondary rule of war crimes than the primary rule of proportionality.145 Article 8(2)(b)(iv) of the ICC Statute adds “overall” to the military advantage. This seems to broaden the scope of factors that can be considered when juxtaposing the “concrete and direct overall military advantage anticipated” and the “incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment”.146 It makes the “highly elastic principle”147 of proportionality even more elastic.

4.7.2 Protected Interests: Civilians and International Peace The war crime of “excessive attack” primarily protects civilians (and the environment).148 It ignores, in contrast, combatant losses.149 Regarding individual interests, the protective scope of the war crime of “excessive attack” seems to be smaller. This is particularly the case if the “gravity” qualifier of the crime of aggression is read as including all likely or caused harm to individuals. According to Chap. 3, it includes harm to individuals irrespective of whether the conduct is in compliance with international humanitarian law or whether or not it fulfills the conditions of another core crime.150 Sovereignty is not a directly protected interest of this war crime, even if it requires the context of an “international armed conflict”, and thereby requires recourse by a State to armed force against another State.151 Like any other war crime, it seeks to limit the disruption of international peace.152

144

On the modifications, see Ambos 2022, pp. 210 et seq.; Dörmann 2004, p. 166; Newton and May 2014, pp. 112 et seq.; Wehrenberg 2021, paras 246 et seq. 145 This is why the codification in the ICC Statute is described as a “setback compared to the primary rules”, Ambos 2022, p. 211. 146 See ICC Statute, Article 8(2)(b)(iv). 147 Walzer 2013, p. 435. 148 Article 8(2)(b)(iv) of the ICC Statute does not require the damage to have occurred. See Wehrenberg 2021, para 251; Dörmann 2004, p. 162. See also Elements of Crimes for Article 8(2)(b)(iv) of the ICC Statute, num. 2. 149 Dinstein 2013, p. 80. 150 See Chap. 3, Sect. 3.5.6. 151 See the interpretation of Common Article 2 of the 1949 Geneva Conventions, in ICRC 2008, p. 1. 152 See Werle and Jeßberger 2020, para 1190.

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4.7.3 Type of Attack: Ius ad Bellum Violation Reflected in “Excessive Attack”? The differences between the war crime of “excessive attack” and the crime of aggression are sharper regarding the type of attack from which the identified legal interests are protected. Under Article 8(2)(b)(iv) of the ICC Statute, and the corresponding domestic implementations, civilians, the environment and international peace are not protected from any attack. They are only protected in an international armed conflict from the intentional launching of attacks with the knowledge that such attacks will cause incidental civilian and environmental damage that is clearly excessive in relation to the overall military advantage. The war crime serves to prevent excessive collateral damage in the context of international armed conflict. The central question is whether this war crime could also cover key parts of the core wrong of the crime of aggression, which are the use of armed force “by a State” in manifest violation of the ius ad bellum, triggered by a person from the leadership circle of the State. The inter-State use of armed force of the crime of aggression is somehow reflected in the war crime described in Article 8(2)(b)(iv) of the ICC Statute, which requires an “international armed conflict”153 and the perpetrator to “launch an attack”.154 The manifest violation of ius ad bellum by a crime of aggression, however, is not necessarily captured in the conduct of the war crime of “excessive attack”. There have been some academic attempts to explore the possibility of charging aggression as such a war crime.155 They all face one major objection to the inclusion of ius ad bellum considerations in the balancing exercise: the firm separation of ius in bello and ius ad bellum at the level of primary norms.156 If the primary norms are to be kept separate, there should be no merging at the level of the secondary norms either. If the previous violation of ius ad bellum is irrelevant to deciding whether an attack complies with the principle of proportionality under ius in bello, the violation of ius ad bellum cannot play a role to decide whether the attack amounts to the corresponding war crime of “excessive attack”.

153

To recall, an “international armed conflict” is understood as the recourse by a State to armed force against another State, regardless of the reasons or the intensity of this confrontation. See the interpretation of Common Article 2 of the 1949 Geneva Conventions, in ICRC 2008, p 1. 154 “Attack” in the sense of Article 8(2)(b)(iv) of the ICC seems to be broader than “armed attack” as understood under ius ad bellum. If it shares the meaning of “attack” of other war crimes, it “refers simply to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict”, see Pilloud and Pictet 1987a, para 1882. The International Criminal Court has relied upon the definition of Article 49(1) of Additional Protocol I to the Geneva Conventions, see ICC (PTC), Abu Garda, Decision, 8 February 2010, para 65. 155 VanLandingham 2016. See also Harris 2016; Otieno et al. 2016. 156 On the separation of ius ad bellum and ius in bello, see Cannizzaro 2015, pp. 347 et seq.; Greenwood 1983; Lauterpacht 1953; Sassòli 2007; Sloane 2009.

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The Rationale of the Firm Separation of Ius ad Bellum and Ius in Bello at the Level of Primary Norms

Whether the separation at the level of primary norms is transferrable to the level of secondary norms depends, inter alia, on the rationale behind this “absolute dogma”.157 A first explanation for the separation of both fields of law is rooted in the time lag between their codifications.158 The first codifications of the ius in bello159 took place decades before the prohibition160 and the criminalization of war.161 This is why it was difficult to understand the rules under ius in bello in a way that integrates considerations from an uncodified (or even non-existing) field of law.162 After 1945, ius ad bellum was codified with the prohibition of the use of force in the UN Charter163 and the criminalization of aggression in the IMT Charter.164 After 1945, the temporal aspect alone could no longer explain the application of ius in bello irrespective of ius ad bellum considerations.165 However, neither the revision of the Geneva Conventions in 1949,166 nor the adoption of the Additional Protocols167 in 1977 led to the inclusion of a provision 157

See Doswald-Beck 1997, p. 53. See also VanLandingham 2016, p. 229. 159 The first documents codifying the rules applicable during armed conflicts were the Lieber Code of 1863 and the First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864. For the historical development of the ius in bello, see O’Connell 2021, Sections 2.05 et seq.; Werle and Jeßberger 2020, paras 1146 et seq. 160 It was only in 1928 when the legal framework of the ius ad bellum was built into the KelloggBriand Pact. For a historical perspective on the ius ad bellum, see Dinstein 2017, pp. 67 et seq.; Kolb 2018, pp. 29 et seq.; Sloane 2009, pp. 57 et seq. 161 Namely in 1945, see IMT Charter, Article 6(a). 162 See Sloane 2009, p. 70. Similarly, Cannizzaro 2015, p. 347. 163 UN Charter, Article 2(4). 164 IMT Charter, Article 6(a). 165 Similarly doubting and assessing whether the independent application of ius in bello still made sense when the ius ad bellum has become more developed, Greenwood 1983, p. 225. See also Bugnion 2002, pp. 527 et seq.; Dinstein 2017, pp. 177 et seq.; Lauterpacht 1953, pp. 210 et seq. 166 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (Geneva Convention I); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (Geneva Convention II); Convention (III) Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (Geneva Convention III); Convention (IV) Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950)(Geneva Convention IV). 167 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1978) (Additional Protocol I); Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Additional Protocol II). 158

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that made the application of ius in bello dependent upon the compliance with ius ad bellum. Common Articles 1 and 2 of the Geneva Conventions instead clarify that the provisions need to be respected “in all circumstances” and apply “to all cases of declared war or any other armed conflict”. The Preamble of the Additional Protocol I of 1977 is more explicit. It requires the rules of ius in bello to apply “in all circumstances” and “without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict”. Hence, the revision of ius in bello after the codification of ius ad bellum confirmed the continued application of ius in bello, irrespective of the legality of the previous resort to force.168 Contrary proposals from States, like Vietnam169 and China,170 were rejected when States drafted Additional Protocol I. While the temporal lead of the ius in bello codification can no longer explain the equal application of ius in bello, irrespective of who has previously violated ius ad bellum, there is still a very pragmatic explanation.171 As the United Kingdom stated at the diplomatic conference which led to the adoption of the Additional Protocols: “Humanitarian law [is] concerned not with who was right or wrong but with the unfortunate victim of events, the human being who was caught in the jaws of fate.”172 The introduction of ius ad bellum considerations into international humanitarian law would inevitably result in a lowering of protection afforded to victims of war. “Rare was the man who thought his enemy right” is how the United States explained the pragmatic approach of international humanitarian law.173 Belligerent parties would mutually charge each other with having violated the ius ad bellum, which would lead to a “total disregard”174 and “complete collapse”175 of international humanitarian law. Hence, even after the codification of ius ad bellum, there are still pragmatic reasons for retaining the separation to ius in bello, namely, to avoid its total disregard to the detriment of the individuals affected by the armed conflict. 168

In the same vein, O’Connell 2021, Section 2.01 para 7; Pilloud and Pictet 1987b, para 1929. Vietnam considered the “watertight separation between jus ad bellum and jus in bello” to be a “flagrant anomaly now that the war of aggression is deemed to be the ‘ultimate international crime’”. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Volume IV 1978, p. 177. Similarly, Mauritania proposed to consider the motivation to resort to force as “effects could not be considered if their causes were ignored”. See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Volume V, p. 13. 170 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Volume V, p. 120. 171 See also Greenwood 1983, p. 226. See also Dinstein 2017, p. 179; Sassòli 2007, p. 246; VanLandingham 2016, p. 231. 172 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Volume V, p. 134. 173 Ibid., p. 110. Similarly, Bugnion 2002, pp. 535 et seq.; Sassòli 2007, p. 251. 174 O’Connell 2021, Section 2.01, para 7. 175 Dinstein 2017, p. 179. In the same vein, Sassòli 2007, p. 246; Lauterpacht 1953, p. 212. 169

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However, the underlying pragmatic rationale for separating ius in bello and ius ad bellum at the level of primary norms may not necessarily suffer from the limited inclusion of ius ad bellum considerations at the level of secondary norms. Several scholars proposed considering the prosecution of aggressors for the war crime of “excessive attack” would only lead to the inclusion of ius ad bellum considerations in charges against those from the leadership circle of the aggressor State. Lessening the firm separation of ius in bello and ius ad bellum for the sole purpose of holding these State leaders accountable would not necessarily lead to a “total disregard”176 of international humanitarian law on the battlefield. Combatants on the ground could still ensure their impunity by complying with international humanitarian law. As explained in Chap. 3, upholding the incentive for ordinary combatants to comply with international humanitarian law is the reason why they should be excluded from the personal scope of application of the crime of aggression through the leadership clause.177 Those from the leadership circle of a State, in contrast, “are typically not the individuals making the jus in bello decisions” on the battlefield.178 Lessening the firm separation at their detriment would not negatively affect the compliance of ius in bello, or even lead to its total disregard on the battlefield.

4.7.3.2

Injection of Ius ad Bellum Considerations Via “Clearly Excessive” and “Overall” Military Advantage?

The language of Article 8(2)(b)(iv) of the ICC Statute and the corresponding domestic implementations may allow the firm separation to lessen at the level of secondary norms. They do not copy the proportionality principle’s wording. They modify the balancing exercise by requiring the anticipated incidental civilian and environmental damage to be “clearly” excessive compared to the concrete and direct “overall” military advantage. This may broaden the scope of factors that can be considered in the balancing exercise. Capturing the wrong of aggression in the provisions of other crimes under international law requires a gateway that allows for creative interpretation. “Proportionality”, with the additions of “clearly excessive” and “overall”, could indeed work as such a gateway. It does not provide a predetermined balance of values and interests that are presumed to remain stable over time.179 It is flexible enough to adapt to the specific features of every single case.180 Thus, one might be tempted to make a holistic assessment of military advantage, considering the violation of ius ad bellum as a detrimental factor. VanLandingham, for example, argues, in reference to the US Department of Defense Law of War Manual, that the determination of the anticipated military 176

O’Connell 2021, Section 2.01, para 7. See Chap. 3, Sect. 3.6.3. 178 VanLandingham 2016, p. 270. 179 Cannizzaro 2015, p. 332. 180 Ibid. 177

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advantage is not restricted to immediate tactical gains, but may be assessed in the full context of the “war strategy”.181 She claims that the criminality of an aggressive war strategy nullifies the military advantage.182 If a war crime under Article 8(2)(b)(iv) of the ICC Statute requires civilian and environmental damage to be clearly excessive vis-à-vis the military advantage, nullifying the military advantage would easily turn the majority of attacks on military objectives into war crimes. Conceptually, however, assuming the nullification of military advantage in case of aggressive use of force conflicts with the function of proportionality as a means of flexible law-making. Proportionality is a concept adaptable to the specific features of each case. All interests at stake can be combined according to a potentially infinite range of possible combinations.183 If the aggressive use of force always nullifies the military advantage, and thus turns most attacks into excessive ones, it is more appropriate to resort to the classical model of law-making.184 The classical model fixes a rule with a predetermined balance of interests which remains stable over time.185 This is what States did when they adopted Article 8bis of the ICC Statute. Aggressive use of force is criminalized irrespective of the case-specific balance between the expected civilian damage and the anticipated military advantage. A footnote186 to the Elements of Crimes to Article 8(2)(b)(iv) of the ICC Statute clarifies that the concrete and direct overall military advantage “does not address justifications for war or other rules related to jus ad bellum”.187 Thus, the flexibility provided by the terms “overall” and “clearly” in the definition of the war crime of “excessive attack” should not be understood as modifying the indifference of proportionality towards ius ad bellum considerations.188 States Parties did not intend to merge at the level of secondary norms what was to be kept apart at the level of primary norms. The rejection of ius ad bellum considerations in the Elements of Crimes does not necessarily mean that they play a role in the interpretation of domestic implementations of this war crime. The Elements of Crimes “shall assist” the International Criminal Court in the interpretation of the ICC Statute crimes.189 Provided the domestic legislature aims to mirror the definitions of the crimes of the ICC Statute, however, 181

VanLandingham 2016, p. 265; US Department of Defense 2015, pp. 215 et seq. For a thorough analysis of the US Manual, see Newton 2019. 182 VanLandingham 2016, pp. 265 et seq. 183 On the inherent power of the principle of proportionality to adapt to different situations with multiple combinations of interests, see Cannizzaro 2015, p. 332. 184 See Cannizzaro 2015, p. 332 who juxtaposes this classical model of law-making with the flexible model of law-making in the form of proportionality. 185 Ibid. 186 Admittedly, footnotes can be used as a technique in international negotiations to conceal a lack of consensus. On the parallel discussion of the footnote to Article 8(2)(c)(ii) of the ICC Statute and the discussion of whether a “dead” person is a protected person under international humanitarian law, see Berster 2017, p. 266. 187 Elements of Crimes for Article 8(2)(b)(iv), fn. 36. 188 See also Dörmann 2004, p. 163. 189 See ICC Statute, Article 9. See also ICC Statute, Article 21(1)(a).

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there are good reasons to assume that the non-binding190 – but assisting191 – function of the Elements of Crimes can extend to the domestic sphere.192 This is supported by the fact that the exclusion of ius ad bellum considerations by the footnote is “a correct reflection of existing law and should be clear even without a commentary”.193 Thus, the function of proportionality as a means of flexible law-making, as well as the clear statement in the guiding Elements of Crimes, militate against perceiving “clearly excessive” and “overall military advantage” as an invitation to include ius ad bellum considerations. Ius ad bellum violations are not dealt with by Article 8(2)(b)(iv) of the ICC Statute, or by the corresponding domestic implementations. Therefore, they are unable to capture this central component of the crime of aggression.

4.7.4 Conclusion to the Crime of Aggression as a War Crime To conclude, States that have not implemented the crime of aggression but the war crime of “excessive attack”, modelled on Article 8(2)(b)(iv) of the ICC Statute, are unable to capture the core wrong of the crime of aggression.194 Apart from the different emphasis of their protective scope on civilians, the war crime of “excessive attack” differs from the crime of aggression as it protects civilians from a type of attack that is unrelated to ius ad bellum considerations. Although the vague terms of “overall military advantage” and of “clearly excessive” in Article 8(2)(b)(iv) of the ICC Statute modified the underlying principle of proportionality, they did not weaken the separation of ius in bello and ius ad bellum. The aggressive use of force is thus not a factor that nullifies the anticipated military advantage, which would easily turn most attacks on military objectives into the war crime of “excessive attack”. This follows from the function of proportionality as a means of flexible law-making, instead of fixing a rule with a predetermined balance of interests. Moreover, States Parties clarified in the Elements of Crimes that “rules related to jus ad bellum” are irrelevant in the assessment of Article 8(2)(b)(iv) of the ICC Statute. If States aim to 190

Bitti 2015, p. 420; Werle and Jeßberger 2020, para 236. The International Criminal Court has frequently referred to the Elements of Crimes, demonstrating that its assisting function has been taken seriously. See, e.g., ICC (PTC), Lubanga, Decision, 29 January 2007, paras 205 and 240; ICC (PTC), Al Bashir, Decision, 4 March 2009, paras 123 et seq. 192 The German Federal Supreme Court of Justice has referred to the intention of the domestic legislature to implement the criminal provisions of the ICC Statute to justify the application of the Elements of Crimes to the parallel domestic provision. See German Federal Court of Justice, Judgment, 27 July 2017, 3 StR 57/17, paras 19 et seq. 193 Dörmann 2004, p. 163. The application of a specific footnote of the Elements of Crimes could be called into question, if it did not reflect customary international law, see Berster 2017. 194 The same reasoning applies mutatis mutandis to the war crimes of Article 8(2)(a)(iv) and Article 8(2)(b)(xiii) of the ICC Statute and leads to the rejection of ius ad bellum considerations for the interpretation of “military necessity”. 191

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mirror the definitions of the ICC Statute crimes in their domestic implementations, this non-binding but guiding interpretative understanding also plays a role in the domestic sphere. It must be kept in mind that a creative interpretation of the war crime of “excessive attack” would leave random gaps. It would only cover the incidental civilian (an environmental) damage. It would not include directly attacked civilians and combatants. This also militates against including ius ad bellum considerations in the interpretation of the war crime of “excessive attack”.

4.8 Crime of Aggression as a Crime Against Humanity: “Other Inhumane Acts” as a Gateway for Ius ad Bellum Considerations? A similar idea is to prosecute aggressors for the crime against humanity of “other inhumane acts”, as defined in Article 7(1)(k) of the ICC Statute. States that have not implemented the crime of aggression but the crime against humanity of “other inhumane acts” may be able cover aspects of the crime of aggression under their lex lata. This depends on whether the aggressive use of force can be considered as “other inhumane acts” in the sense of Article 7(1)(k) of the ICC Statute. If possible, at least 104 States195 with existing provisions on crimes against humanity could address aggression, provided they have not modified the modality of “other inhumane acts”.196 There are some, including Benjamin Ferencz, US Chief Prosecutor at the Einsatzgruppen Trial, who explore such an interpretation of the ICC Statute.197 The link between aggressive war and humanity in the sense of humankind is not that farfetched. It is traceable in the Preamble of the UN Charter.198 Descriptions of the crime of aggression as a crime against humanity, albeit not in a legal sense, date back to the aftermath of World War II. US President Truman stated that “planning, initiating or waging a war of aggression is a crime against humanity for which individuals as well as States shall be tried.”199

195

See International Law Commission 2016, para 18. Germany, for example, modified the crime against humanity of “other inhumane acts” due to concerns related to the principle of legal certainty, see Meseke 2004, pp. 291 et seq. 197 Ferencz 2015, pp. 195 et seq. An essay competition was organized in 2012 in honor of B. Ferencz by the Whitney R. Harris World Law Institute to address whether illegal uses of force, interstate or otherwise, resulting in significant loss of life, may be prosecutable before the ICC as crimes against humanity. This has produced the following articles: Ventura and Gillett 2013; Ventura 2018; Tan 2013. 198 It states that “the peoples of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. 199 Harry S. Truman, Address in New York City at the Opening Session of the United Nations General Assembly, 23 October 1946: https://www.presidency.ucsb.edu/. Accessed 15 September 2022. 196

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Before considering whether the crime against humanity of “other inhumane acts” covers aspects of the core wrong of the crime of aggression, it is useful to give a general understanding of this crime against humanity.

4.8.1 General Understanding: “Controlled Use of Analogy” for Assessing “Other Inhumane Acts” The crime against humanity of “other inhumane acts”, as defined in Article 7(1)(k) of the ICC Statute and verbatim domestic implementations, requires “other inhumane acts of a similar character [as those listed in litterae (a)–(j)]200 intentionally causing great suffering, or serious injury to body or to mental or physical health”. These acts must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. It is the context of a widespread or systematic attack which gives these crimes their international character.201 The crime against humanity of “other inhumane acts” is a “residual clause”202 or “catch-all crime”203 to other listed individual acts, such as murder or extermination. It captures inhumane acts that are not listed in litterae (a) to (j) of Article 7(1) of the ICC Statute, but which are of a similar character. The assessment of whether conduct can be considered as an “other inhumane act” includes two steps.204 The first step is a process of exclusion.205 The conduct in question must be different from the acts listed in litterae (a) to (j).206 The second step is a similarity assessment. The conduct must be of a character similar to the acts listed in litterae (a) to (j). This depends, according to the Elements of Crimes, on the “nature and gravity” of the act.207 It is ultimately an assessment involving a “controlled use of analogy”.208 This chapter assumes that the interpretation of the domestic versions of Article 7(1)(k) of the ICC Statute follows the two-step assessment described above.

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Added by the author. See Werle and Jeßberger 2020, para 985. See also Kuhli 2010, p. 58. 202 Stahn 2021, para 188. 203 Werle and Jeßberger 2020, para 1136. 204 Stahn 2021, paras 192 et seq. 205 Ibid., para 192. 206 See ICC (PTC), Katanga and Ngudjolo Chui, Decision, 30 September 2008, para 452; ICC (PTC), Muthaura et al., Decision, 23 January 2012, para 269; ECCC(TC), Nuon and Khieu, Judgment, 16 November 2018, para 724. 207 See Elements of Crimes for Article 7(1)(k) of the ICC Statute, num. 2 fn. 30. See also ICC (PTC), Katanga and Ngudjolo Chui, Decision, 30 September 2008, para 451. 208 Broomhall 2021, para 43. 201

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4.8.2 Protected Legal Interests: Civilians, Humanity and International Peace Crimes against humanity protect individual interests as well as collective interests, such as humanity and international peace in the broader sense.209 Apart from sovereignty,210 the range of protected interests is thus similar to those of the crime of aggression. The emphasis of the protective scope of both crimes, however, differs. The crime of aggression is more directly linked to peace than the other crimes.211 The protection of individual interests, in contrast, is less straightforward.212 This is reversed in the case of crimes against humanity, moving from the micro to the macro level. They do “not only” affect the individual victim,213 “but also” the international community as a whole.214 The protection of individual interests is limited under crimes against humanity to a certain category of persons. They mainly capture the wrong against civilians.215 The population must only be “predominantly civilian in nature” and it is “not required that each individual victim is civilian”.216 Despite this small safety net for some combatants, crimes against humanity still obscure the violation of sovereignty and the suffering of combatants.217 This is different in the case of the crime of aggression.

4.8.3 Type of Attack: Ius ad Bellum Violation Reflected in “Other Inhumane Act”? The central question is whether the crime against humanity of “other inhumane act” could also cover the type of attack characterizing the core wrong of the crime of aggression. The type of attack covered by the criminalization of aggression consists of the use of armed force “by a State”, which is considered as “aggressive”, and is triggered by a person from the leadership circle of a State. The use of armed force “by a State” could still be perceived as being reflected in the widespread or systematic attack against a civilian population, combined which 209

See Ambos 2018, §7 mn. 173; Safferling 2011, § 6 mn. 54; Werle and Jeßberger 2020, para 986. On the controversy about the cumulative protection of individual and collective interests by crimes against humanity, see, e.g., Kirsch 2009, p. 119; Meseke 2004, pp. 117 et seq. 210 Unless the illegal use of armed force can be considered as an “other inhumane act”. 211 Jeßberger and Geneuss 2021, p. 11. See also Atadjanov 2019, p. 304. 212 See Chap. 3, Sect. 3.5. 213 Due to the underlying acts, see Kirsch 2009, p. 119. 214 See Werle and Jeßberger 2020, para 986. 215 Similarly, Ventura 2018, p. 418. 216 Cryer et al. 2019, p. 239. 217 See also on the limited scope of crimes against humanity Cassese et al. 2013, p. 103; Kirsch 2009, p. 125.

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the “policy element”218 required for such attacks. This could be suggested by the fact that the use of armed force that amounts to aggression is often said to involve an “armed attack”.219 “Attack” in the sense of Article 7 of the ICC Statute, however, does “not need to constitute a military attack”.220 It requires a “course of conduct involving the multiple commission of acts referred to in paragraph 1 [of Article 7 of the ICC Statute]”.221 The listed acts of violence, such as murder, are most likely to be committed multiple times by acts of aggression to reach the “manifest” threshold of the crime of aggression.222 However, their commission as part of a military attack is not reflected in the element of “attack” required for a crime against humanity.223 The qualifying element of “systematic” refers to a certain degree of organization and planning224 of the acts. The “policy element” requires an attack “pursuant to or in furtherance of a State or organizational policy”.225 This brings the type of attack covered by crimes against humanity closer to the systemic nature of a planned, prepared, initiated, or executed State act of aggression.226 The direction of the attack of crimes against humanity, in contrast, is fundamentally different from that of the crime of aggression. Article 7 of the ICC Statute requires an attack “against any civilian population” and a policy of the State to “actively promote or encourage such an attack against a civilian population”.227 A crime of aggression under Article 8bis(1) of the ICC Statute consists of the use of armed force “against the sovereignty, territorial integrity or political independence of another State or in any other manner inconsistent with the Charter of the United Nations”. Hence, the contextual elements of crimes against humanity can reflect the use of armed force by a State, but this 218

This policy element, the commission “pursuant to or in furtherance of a State or organizational policy”, is explicitly required in Article 7(2)(a) of the ICC Statute. 219 See on the concept of “aggression” and “armed attack”, Akande and Tzanakopoulos 2017, pp. 220 et seq. 220 See Elements of Crimes for the ICC Statute for Article 7, Introduction, num. 3. See also Ambos 2021, para 16. See also ICC (TC), Katanga, Judgment, 7 March 2014, para 1101; ICC (TC), Bemba, Judgment, 21 March 2016, para 149. Admittedly, this does not exclude military or armed attacks to fulfil the requirements of attacks in the sense if Article 7 of the ICC Statute. In the same vein, Ventura 2018, p. 398. 221 See ICC Statute, Article 7(2)(a); Elements of Crimes for Article 7 of the ICC Statute, Introduction, num. 3; Tan 2013, p. 159. 222 In that regard, the “gravity” qualifier of the manifest violation of the UN Charter, inherent in every crime of aggression, may even be read as requiring the killing of persons. See Chap. 3, Sect. 3.5.4. 223 In the same vein, Ventura 2018, p. 398. 224 See Schabas 2016, p. 165; Werle and Jeßberger 2020, para 1002; ICC (TC), Katanga, Judgment, 7 March 2014, para 1123. 225 This requires a State or organization to “actively promote or encourage such an attack against a civilian population”. See Elements of Crimes for Article 7 of the ICC Statute, Introduction, num. 3. See also ICC (TC), Bemba, Judgment, 21 March 2016, para. 159. In detail, see Commentary to Draft Article 2 in International Law Commission 2019, paras 25 et seq. 226 On the fulfillment of the policy element in case of illegal use of force, see Ventura 2018, p. 407. 227 See Elements of Crimes for Article 7 of the ICC Statute, Introduction, num. 3. See also ICC (TC), Bemba, Judgment, 21 March 2016, para 159.

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suggests that the civilian population must be the primary target. This is not the key or sole focus of attacks which fall under the crime of aggression.228 Moreover, it comes at the cost of neglecting the military nature of the attack. More decisive, however, is whether the “aggressive” use of armed force can be considered “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” in the sense of Article 7(1)(k) of the ICC Statute.229 As explained before, this requires, as a first step, a process of exclusion.230 The “aggressive” use of armed force is an “other” act, not yet listed in litterae (a) to (j) of Article 7(1) of the ICC Statute, if the act has at least one “materially distinct element”.231 This can stem from the conduct, ensuing harm and protected interests.232 The “aggressive” use of armed force requires a manifest violation of the UN Charter.233 Since this manifestly illegal use of armed force affects sovereignty and suggests a violation of the ius ad bellum, it differs from the acts of violence mentioned in litterae (a) to (j) of Article 7(1) of the ICC Statute. Killings that result from the crime of aggression, for example, could be covered by the listed act of “murder”. Only their qualification as “other inhumane acts”, however, would emphasize the fact that the deaths result from an unlawful violation of another State’s sovereignty. The manifestly unlawful use of armed force is therefore not yet covered in the listed acts. The second step is to assess whether the manifestly unlawful use of armed force is of a similar character to the acts listed in litterae (a) to (j) of Article 7(1) of the ICC Statute. This depends on the “nature and gravity” of the act234 and involves a value judgment.235 The essential similarities236 between the listed acts are that they are directed at the protection of fundamental human rights.237 Most also exist as ordinary crimes under domestic law.238 The manifestly illegal use of armed force, in contrast, does not have its origin in ordinary criminal law, but in ius ad bellum. The aim of protecting human rights is also a more controversial claim in the context of aggressive use of armed force, despite discussions on a potential human right to 228

See Ventura 2018, p. 403 who notes that civilians affected by crimes of aggression can also be “merely incidental and unfortunate victims”. 229 In favor of such a qualification, see Ferencz 2015. In the same vein, Ventura 2018, pp. 410 et seq. 230 Stahn 2021, para 192. 231 Ibid. 232 See ICC (PTC), Ongwen, Decision, 23 March 2016, para 92. 233 See Chap. 3, Sect. 3.6.2. 234 See Elements of Crimes for Article 7(1)(k) of the ICC Statute, num. 2 fn. 30. See also ICC (PTC), Katanga and Ngudjolo Chui, Decision, 30 September 2008, para 451. 235 Stahn 2021, para 192. 236 For a different similarity assessment consisting of in a detailed analysis of the similarities between the illegal use of force and the listed acts of apartheid and persecution, see Ventura 2018, pp. 413 et seq. 237 See Ambos 2022, pp. 132 et seq.; Cassese et al. 2013, p. 92; Schabas 2016, p. 147; Werle and Jeßberger 2020, para 1138. 238 Bassiouni 2011, p. 2; Safferling 2011, § 6 mn. 44.

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peace,239 and the realization that killings that result from acts of aggression ipso facto violate the right to life.240 Even if it was assumed that the manifestly illegal use of armed force was similar to the acts listed in litterae (a) to (j), the function of Article 7(1)(k) of the ICC Statute goes against a finding that it would capture a manifestly illegal use of armed force as an “other inhumane act”. As a residual clause, it captures inhumane acts of which States Parties failed to think.241 It addresses the inability of closed lists of crimes “to catch up with the imagination of future torturers”.242 By inserting a placeholder for the crime of aggression in former Article 5(2) of the ICC Statute in 1998, however, States expressed their awareness of the horrors aggressive use of armed force may bring about. Interpreting “inhumane act” to cover aggressive use of armed force would therefore go beyond the “controlled use of analogy”243 of Article 7(1)(k) of the ICC Statute. If the International Criminal Court is prevented by the function of Article 7(1)(k) of the ICC Statute to correct this deliberate lacuna in the list of acts, so too are States that have implemented this crime against humanity into domestic law. Moreover, the acceptance of such a crime against humanity as an “inhumane act”, which emphasizes the link of harm to individuals with the use of aggressive force, appears retrogressive considering the lack of a nexus requirement under the ICC Statute.244 Unlike Article 6(c) of the IMT Charter,245 Article 7 of the ICC Statute does not require crimes against humanity “in execution of or in connection with any crime within the jurisdiction” of the International Criminal Court, such as the crime of aggression.

4.8.4 Conclusion to the Crime of Aggression as a Crime Against Humanity To conclude, States that have not implemented the crime of aggression but the crime against humanity of “other inhumane act”, as defined in Article 7(1)(k) of the ICC Statute, cannot capture the core wrong of the crime of aggression. It is ultimately the function of Article 7(1)(k) of the ICC Statute as a residual clause, which conflicts with perceiving the manifestly illegal use of armed force as an “other inhumane act”. 239

See Chap. 2, Sect. 2.4.3.2. See UN Human Rights Committee 2018. 241 On the identification of unintended lacunae and the deliberate policy decisions of the legislative branch not to regulate, see Larenz and Canaris 1995, p. 194. 242 See ICTY (TC), Kupreški´ c, Judgment, 14 January 2000, para. 563. Similarly on the “other inhumane acts” clause of Article 7 of the ICC Statute, see McCormack 2004, p. 201. 243 Broomhall 2021, para 43. 244 Similarly, Ventura 2018, pp. 422 et seq. 245 See IMT Charter, Article 6(c). For a discussion of whether this nexus was of a substantive or jurisdictional nature, see Schabas 2016, pp. 168 et seq. 240

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This term is limited to lacunae that were not deliberately left by States Parties. The omission of the illegal use of force, in contrast, was deliberate and a task left for the Review Conference in Kampala. Addressing aggression by means of the crime against humanity of an “other inhumane act” would send a distortive message about the protected legal interests and the type of attack from which such interests are protected. The emphasis of the protective scope of crimes against humanity and of the crime of aggression differs. Crimes against humanity move from the micro to the macro level. The crime of aggression is the crime most directly linked to peace and it is less pronounced in its protection of individual interests. Crimes against humanity obscure the suffering of combatants and characterize the civilian population as the primary target, which is not the key or sole focus of attacks which fall under the crime of aggression. There are also general objections to the injection of ius ad bellum considerations through vague terms in other “crimes under international law”. The ability of domestic criminal law to capture aspects of the crime of aggression would depend on the aleatory existence of vague terms in other “crimes under international law”. This leads to random normative gaps in comparison to the crime of aggression. The war crime of “excessive attack” does not deal with direct attacks on civilians and is indifferent towards combatants. This indifference is shared by the crime against humanity of an “other inhumane act”, which only captures those attacks which have civilians as the primary target. The crime of aggression, however, is concerned with the manifest illegal use of armed force. It does not make criminality primarily dependent upon the direction of the executed attacks as being against civilians. What matters is “not just that one has been convicted but of what one has been convicted”.246 Werle noted regarding other core crimes, that perpetrators might “somehow” be punished by relying on ordinary criminal offenses, but that this would still fail to reflect the specific wrong of crimes under international law.247 There is a certain conflict with the principle of fair labelling. The concern is to see that “widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking”.248 Already the IMT Charter saw a difference between the crime of aggression, war crimes and crimes against humanity. These widely felt distinctions would be neglected if the aggressive use of force – the wrong of aggression – were to be squeezed into crimes against humanity or war crimes using vague terms as interpretative gateways. Reflecting aspects of aggression by interpreting vague terms creates the risk of circumventing the limitations which are built into the definition of the crime of aggression.249 The crime of aggression can only be committed by persons from the 246

Horder 1994, p. 351. Werle 2000, pp. 757 et seq. 248 Ashworth and Horder 2013, p. 77. This is a concept first developed by Ashworth 1981, p. 53. The term “fair labelling”, instead of “representative labelling”, was proposed by Williams in response to Ashworth’s article, see Williams 1983, p. 85. 249 In the same vein, Ventura 2018, pp. 421 et seq. See also Tan 2013, pp. 161 et seq. 247

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leadership circle of a State. It contains the high threshold of a “manifest” violation of the UN Charter and it excludes the use of force by non-State actors. Ordinary combatants who are unable to commit a crime of aggression would risk being charged with the war crime of “excessive attack” or the crime against humanity of “inhumane act”, if courts do not properly integrate the leadership clause of the crime of aggression in their interpretation. Moreover, who could guarantee that judges only perceive the use of armed force as an “excessive attack” or an “other inhumane act” if it reaches the “manifest” threshold of Article 8bis of the ICC Statute? The use of armed force below this threshold could suddenly become punishable. Other parts of the definition of aggression may also be affected. Ventura, for example, assesses the possibility of charging the illegal use of force as an “other inhumane act” irrespective of whether it leads to an international or non-international armed conflict.250 This is, however, a significant deviation from the Kampala consensus, where States Parties decided to exclude the use of force by and against non-State actors. Admittedly, States could read all parts of the definition of the crime of aggression into an “inhumane act” and an “excessive attack”. However, if they are so willing to pay attention to the definition of the crime of aggression as given by the ICC Statute, they may simply implement the crime of aggression into domestic law instead of unduly stretching the definition of war crimes and crimes against humanity.

4.9 Conclusion This chapter identified the common normative gaps under domestic criminal law of States that have not (yet) implemented the crime of aggression as defined in Article 8bis of the ICC Statute. The analysis of various types of criminal offenses, of a purely domestic nature or as informed by international (criminal) law, has shown that that the non-implementation of the crime of aggression leaves considerable normative gaps. If States have criminalized the “crime of aggressive war” under domestic law, in contrast, they can cover most aspects of the Kampala version of the crime of aggression. The Nuremberg and Tokyo version only leaves minor gaps by requiring an animus aggressionis but offers a surplus in the personal scope of application. The other aggression-related criminal offenses of “incitement to war” and “propaganda for war” protect the same legal interests and have some overlap with the preparation or planning of an act of aggression. As “preliminary offenses”, however, they fail to reflect the wrong of the execution phase. Normally, the non-implementation of an ICC Statute crime leaves States with the alternative of covering aspects of this crime by relying on ordinary criminal offenses. In the case of the crime of aggression, neither treason as the “oldest crime against the State”, nor other ordinary criminal offenses provide an alternative. Treason protects State interests only from “attacks from within”, covering only exceptional cases of assisting a foreign act of aggression. Despite the common assumption that the State 250

Ventura 2018, p. 398.

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act of aggression cannot be broken down into individual acts, some acts can be captured by other ordinary criminal offenses. Their prosecution, however, is typically barred by the combatant’s privilege if the conduct complies with international humanitarian law. It is not alien to domestic law that previous unlawful conduct can negatively affect the invocation of a defense. However, it is far from being a general principle that would provide an exception to the combatant’s privilege due to the previous unlawful use of armed force. In any case, the sum of ordinary criminal offenses against individual interests would send a distortive message about the core wrong of the crime of aggression. The crime of aggression’s protection of individual interests is less pronounced and integrated into the context of macro criminality committed against the collective interests of State sovereignty and international peace. Ordinary criminal offenses also miss out on the benefits that the label of “crimes under international law” may entail. Normative gaps also exist under the domestic law of States which have criminalized genocide, crimes against humanity and war crimes. Focusing only on the “crimes under international law” that are committed cumulatively with, or subsequently to, the crime of aggression would emphasize the common description of aggression as being the “mother of all crimes”. Such a focus would also cover the necessary “gravity” of a punishable act of aggression, which is understood as referring to the effects of the act of aggression. Domestic legal orders that contain genocide, crimes against humanity and war crimes are unable to acknowledge the violation of State sovereignty and of international peace by the unlawful use of armed force. They also fail to condemn all effects on individuals that result from the act of aggression. Creative proposals inject ius ad bellum considerations into the assessment of the vague terms of the war crime of “excessive attack” and of the crime against humanity of an “other inhumane act”. However, they face interpretative obstacles. These obstacles are primarily due to the specific function of these vague terms. Like the underlying principle of proportionality, the term “excessive attack” provides a flexible rule. It would be a fixed rule with a predetermined balance of interest, however, if the aggressive use of armed force was automatically considered as an “excessive attack”. The function of “other inhumane acts” is to provide a residual clause for acts which States were unable to think of when they drafted the ICC Statute. The crime of aggression, however, was a wrong already known during the drafting as it is expressed in the placeholder of former Article 5(2) of the ICC Statute. Apart from the domestic criminal law of States that have at least criminalized the Nuremberg and Tokyo version of the “crime of aggressive war”, domestic criminal law is largely unable to cover the core wrong of the crime of aggression based on existing types of criminal offenses. This allows the conclusion that there is a need for implementation on the part of States which wish to have the core wrong of the crime of aggression, as defined in Article 8bis of the ICC Statute, adequately reflected in their domestic criminal law. It is relevant for other chapters that existing types of criminal offenses under domestic law cannot fully capture the wrong of the crime of aggression. The inability of States to cover the wrong of aggression without implementation is the reason why it was possible in Chap. 2 to infer a prior obligation to make aggression a

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crime under domestic law from the obligation of States to prosecute aggression. Additionally, the inability to address the core wrong of the crime of aggression could leave States in a situation where they cannot prevent the International Court from stepping in after the commission of a crime of aggression. As explained in Chap. 2, this can create an incentive for States to criminalize aggression under domestic law to ensure they maintain ownership over cases of aggression which have a link to their State. However, the risk of judicial intervention in aggression cases depends on the jurisdictional reach of the International Criminal Court. This will be discussed in the following chapter. If the International Criminal Court is unable to exercise jurisdiction over crimes of aggression without a certain form of consent by the States closer to the crime, there is little need for States to anticipate a hypothetical judicial intervention of the International Criminal Court by a prior implementation of the crime of aggression.

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Lauterpacht H H (1953) The Limits of the Operation of the Law of War. British Yearbook of International Law 30: 206–243 McCormack T L (2004) Crimes Against Humanity. In: McGoldrick D, Rowe P, Donnelly E (eds) The Permanent International Criminal Court: Legal and Policy Issues. Hart, Portland, OR, pp 179–202 McDougall C (2017) The Crimes Against Peace Precedent. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 49–112 McDougall C (2021) The Crime of Aggression under the Rome Statute of the International Criminal Court, 2nd edn. Cambridge University Press, Cambridge, UK/New York, NY Mégret F (2017) What is the Specific Evil of Aggression? In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1398–1453 Merkel R (2012) Die „kollaterale“ Tötung von Zivilisten im Krieg: Rechtsethische Grundlagen und Grenzen einer prekären Erlaubnis des humanitären Völkerrechts. Juristenzeitung 1137–1145 Meseke S (2004) Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen Statut des Internationalen Strafgerichtshofes: Eine völkerstrafrechtliche Analyse [Crimes Against Humanity Under the Rome Statute]. BWV Berliner Wissenschafts-Verlag, Berlin Mill J S (1959) On Liberty. John W Parker & Son, London Neumann U (2017) § 34. In: Kindhäuser U, Neumann U, Paeffgen H-U (eds) NomosKommentar zum Strafgesetzbuch. Nomos, Baden-Baden Newton M (ed) (2019) The United States Department of Defense Law of War Manual: Commentary and Critique. Cambridge University Press, Cambridge Newton M, May L (2014) Proportionality in International Law. Oxford University Press USA/Oxford, UK Nouwen S M H (2013) Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan. Cambridge University Press, Cambridge Nowak M (2005) U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edn. Engel, Kehl O’Connell M E (2021) Historical Development and Legal Basis. In: Fleck D (ed) The Handbook of International Humanitarian Law, 4th edn. Oxford University Press, Oxford, pp 10–49 O’Keefe R (2015) International Criminal Law. Oxford University Press, Oxford Ohlin J D (2017) The Crime of Bootstrapping. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1454–1479 Otieno M, Wabuke E, Otieno S (2016) The Fission and Fusion in International Use of Force: Relating Unlawful Use of Force and the War Crime of Disproportionate Force Not Justified by Military Necessity. Case Western Reserve Journal of International Law 48: 303–327 Paeffgen H-U (2017a) § 80a. In: Kindhäuser U, Neumann U, Paeffgen H-U (eds) NomosKommentar zum Strafgesetzbuch. Nomos, Baden-Baden Paeffgen H-U (2017b) § 81. In: Kindhäuser U, Neumann U, Paeffgen H-U (eds) NomosKommentar zum Strafgesetzbuch. Nomos, Baden-Baden Pilloud C, Pictet J (1987a) Article 49. In: Sandoz Y, Swinarski C, Zimmermann Bruno (eds) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Nijhoff, Geneva Pilloud C, Pictet J S (1987b) Article 51. In: Sandoz Y, Swinarski C, Zimmermann B (eds) Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Nijhoff, Geneva Reisinger Coracini A (2010) National Legislation on Individual Responsibility for Conduct Amounting to Aggression. In: Bellelli R (ed) International Criminal Justice: Law and Practice from the Rome Statute to its Review. Ashgate Pub, Farnham, Surrey, UK/Burlington, VT, p 547 Reisinger Coracini A (2017) (Extended) Synopsis: The Crime of Aggression under Domestic Criminal Law. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1038–1078 Rissing-van Saan R (2005) The German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former Yugoslavia. Journal of International Criminal Justice 3: 381–399

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Robinson P H (1985) Causing the Conditions of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine. Virginia Law Review 71: 1–63 Rowe P (1991) Murder and the Law of War. Northern Ireland Legal Quarterly 42: 216–228 Roxin C (2006) Strafrecht: Allgemeiner Teil, Vol. I [Criminal Law, General Part], 4th edn. Verlag C.H. Beck, Munich Safferling C J M (2011) Internationales Strafrecht: Strafanwendungsrecht, Völkerstrafrecht, europäisches Strafrecht [International Criminal Law]. Springer, Berlin Sassòli M (2007) Ius ad Bellum and Ius in Bello – The Separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected in Warfare: Crucial or Outdated? In: Schmitt M N, Pejic J (eds) International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein. Martinus Nijhoff Publishers, Leiden/Boston, pp 241–264 Satzger H (2002) Das neue Völkerstrafgesetzbuch - Eine kritische Würdigung [The New Code of Crimes Against International Law - A Critical Appraisal]. Neue Zeitschrift für Strafrecht 125–132 Sayapin S (2014) The Crime of Aggression in International Criminal Law. T.M.C. Asser Press, The Hague Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Schabas W A (2004) The Unfinished Work of Defining Aggression: How Many Times Must the Cannonballs Fly, Before They Are Forever Banned? In: McGoldrick D, Rowe P, Donnelly E (eds) The Permanent International Criminal Court: Legal and Policy Issues. Hart, Portland, OR, pp 123–142 Schroeder F-C (1969) Der Schutz des äußeren Friedens im Strafrecht [The Protection of External Peace in Criminal Law]. Juristenzeitung 41–48 Schwenck H-G (1978) Gesetzgeberische Konsequenzen aus den Verboten der Zusatzprotokolle. Neue Zeitschrift für Wehrrecht 199–212 Simester A P, von Hirsch A (2011) Crimes, Harms, and Wrongs: On the Principles of Criminalisation. Hart Publishing, Oxford Sloane R D (2009) The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War. Yale Journal of International Law 34: 47–112 Solis G D (2016) The Law of Armed Conflict: International Humanitarian Law in War, 2nd edn. Cambridge University Press, Cambridge Stahn C (2012) One Step Forward, Two Steps Back?: Second Thoughts on a “Sentence-Based” Theory of Complementarity. Harvard International Law Journal 53: 183–196 Stahn C (2021) Article 7. In: Ambos K (ed) Rome Statute of the International Criminal Court, 4th edn. C.H. Beck, Munich Sternberg-Lieben D (2019) § 81. In: Schönke A, Schröder H (eds) Strafgesetzbuch: Kommentar, 30th edn. C.H. Beck, Munich Stevenson A (ed) (2010) Oxford Dictionary of English, 3rd edn. Oxford University Press, Oxford Streng F (2017) § 20. In: Joecks W, Miebach K, Germany (eds) Münchener Kommentar zum Strafgesetzbuch, 3rd edn. C.H. Beck, Munich Tan C (2013) Punishing Aggression as a Crime Against Humanity: A Noble but Inadequate Measure to Safeguard International Peace and Security. Am. U. Int’l L. Rev. 29: 145–164 UN Human Rights Committee (2018) General Comment No. 36, Article 6, Right to Life, UN Doc. CCPR/C/GC/36 US Department of Defense (2015) (Updated December 2016) Law of War Manual. Office of the General Counsel of the Department of Defense, Washington DC Ventura M J (2018) The Illegal Use of Force (Other Inhumane Act) as a Crime Against Humanity: An Assessment of the Case for a New Crime at the International Criminal Court. In: Sadat L N (ed) Seeking Accountability for the Unlawful Use of Force. Cambridge University Press, Cambridge, UK/New York, NY, pp 386–424 Ventura M J, Gillett M (2013) The Fog of War: Prosecuting Illegal Uses of Force as Crimes Against Humanity. Wash. U. Global Stud. L. Rev. 12: 523–538

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Walzer M (2013) Coda: Can the Good Guys Win? European Journal of International Law 24: 433–444 Wehrenberg S (2021) Article 8. In: Ambos K (ed) Rome Statute of the International Criminal Court, 4th edn. C.H. Beck, Munich Werle G (2000) Völkerstrafrecht und geltendes deutsches Strafrecht [International Criminal Law and German Criminal Law]. Juristenzeitung 755–760 Werle G (2001) Konturen eines deutschen Völkerstrafrechts [The Contours of German International Criminal Law]. Juristenzeitung 56: 885–895 Werle G, Jeßberger F (2020) Principles of International Criminal Law, 4th edn. Oxford University Press, Oxford Whitton J B, Larson A (1964) Propaganda - Towards Disarmament in the War of Words. Oceana Publications, New York Wilkitzki P (1987) Die völkerrechtlichen Verbrechen und das staatliche Strafrecht (Bundesrepublik Deutschland) [Crimes Under International Law and Domestic Criminal Law]. Zeitschrift für die gesamte Strafrechtswissenschaft 99: 455–478 Williams G (1983) Convictions and Fair Labelling. The Cambridge Law Journal 42: 85–95 Wolters G (2016) § 323 a. In: Wolter J (ed) Systematischer Kommentar zum Strafgesetzbuch, 9th edn. Carl Heymanns Verlag, Cologne Zimmermann T (2010) Gilt das StGB auch im Krieg? Zum Verhältnis der §§ 8-12 VStGB zum Besonderen Teil des StGB [Is Criminal Law Applicable During War?]. Goltdammer’s Archiv für Strafrecht 507–524

Other Documents Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977), Volume IV. International Committee of the Red Cross, Geneva Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974-1977), Volume V. International Committee of the Red Cross, Geneva

Chapter 5

The Restricted Jurisdictional Regime of the International Criminal Court

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Why the Jurisdictional Reach of the International Criminal Court Matters for Domestic Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 The Restrictions of the “Ordinary” Jurisdictional Regime Depending on the Operationalization of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3 The Requirement of Consent from the Perspective of International Adjudication and Criminal Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.4 Chronological Structure and Focus on Jurisdictional Regime upon State Referral and Proprio Motu Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 The Rome Compromise: Single-Ratification Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Ratification by the Territorial State or National State of the Accused . . . . . . . . . 5.2.2 Drafting History: Compromise Between Universal Jurisdiction and More Consensual Forms of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Inclusion of Nationals of Non-States Parties Under Territorial Jurisdiction . . . . . 5.2.4 Inclusion of Territory and Nationals of Non-States Parties by Ad Hoc Acceptance, Article 12(3) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.5 Difference in Reach in Case of a UN Security Council Referral . . . . . . . . . . . . . 5.2.6 Critical Account of the Jurisdictional Reach Under the Single-Ratification Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 The Kampala Compromise: Soft Consent-Based Regime for States Parties . . . . . . . . . . 5.3.1 In Principle: Single-Ratification Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Ability for States Parties to Opt Out, Article 15bis(4) of the ICC Statute . . . . . . 5.3.3 Categorical Exclusion of Territory or Nationals of Non-States Parties, Article 15bis(5) of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Possibility for Non-States Parties to Declare an Ad Hoc Acceptance Under Article 12(3) of the ICC Statute? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.5 Difference in Reach in Case of UN Security Council Referral, Article 15ter of the ICC Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.6 Critical Account of the Jurisdictional Reach Under the Soft Consent-Based Regime for States Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 The New York City Resolution: Strict Consent-Based Regime with Opt-Out Option for States Parties? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Content of the Activation Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Drafting History: No Compromise between Strict Consent-Based Regime and Opt-Out Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Legal Value of the Activation Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Interpretation of Article 15bis(4) of the ICC Statute in Light of Its Amendment Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.5 Critical Account of the Jurisdictional Reach Under the Strict Consent-Based Regime with Additional Opt-Out Option for States Parties . . . . . . . . . . . . . . . . . . 5.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract In a book on domestic implementation, exploring the jurisdictional regime of the International Criminal Court matters due to the principle of complementarity. If cases do not fall within the complementary jurisdiction of the International Criminal Court, States lack a sovereignty-driven interest to enact legislation to avoid future judicial interventions. Restrictions on the jurisdiction of the International Criminal Court can thus affect domestic implementation. This chapter explores the restrictions imposed on the regime of the International Criminal Court regarding the crime of aggression. It chronologically assesses the decisions which were adopted at the Rome Conference in 1998, the Kampala Review Conference in 2010 and the Assembly of States Parties in New York City in 2017. The jurisdictional regime following a State referral or proprio motu investigations can be described as being more consensual regarding the crime of aggression. It excludes the territory and nationals of non-States Parties, acts of aggression by States Parties that have opted out, and (arguably) the territory and nationals of States Parties which have not ratified the Kampala Amendments. This leaves little of the strengths of territorial jurisdiction, the most basic principle of criminal jurisdiction. It installs a regime for the crime of aggression, which appeared unacceptable to the overwhelming majority at the Rome Conference. The restrictions increase the dependency from the often-paralyzed UN Security Council which is why domestic implementations can reduce the risk of impunity. Keywords Rome Conference · Kampala Conference · Activation decision · Operationalization of consent · Territorial jurisdiction · Opt-out system · Opt-in system · Behavioral economics · Drafting history · Treaty interpretation

5.1 Introduction This chapter explores the restricted jurisdictional regime of the International Criminal Court regarding the crime of aggression.

5.1.1 Why the Jurisdictional Reach of the International Criminal Court Matters for Domestic Implementation For the domestic implementation of the crime of aggression, the restricted jurisdictional reach of the International Criminal Court matters due to the principle of

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complementarity. As explained in Chap. 2, the Court exercises “complementary” jurisdiction if States are “unable” or “unwilling”.1 This principle is central for the system established by the ICC Statute to function. Although the ICC Statute does not contain an obligation to criminalize, the risk of judicial intervention by the International Criminal Court has a coercive potential on States to enact implementing legislation. Implementation ensures that they are “able” to exercise domestic jurisdiction and render cases before the International Criminal Court inadmissible.2 The coercive potential of complementarity, however, depends on the legal and factual reach of the International Criminal Court.3 If cases are out of reach for the International Criminal Court, States do not need to enact legislation to avoid future judicial interventions. Hence, restrictions of the jurisdictional regime of the International Criminal Court decrease the coercive potential of complementarity. If the restrictions leave the International Criminal Court mostly unable to exercise complementary jurisdiction, States cannot rely on the International Criminal Court as a gap-filler. Instead, they need to take legislative action to avoid impunity for the commission of the crime of aggression in their territory and beyond. The recent inability of the International Criminal Court to exercise jurisdiction over the crime of aggression committed by Russian leaders when invading Ukraine in 2022 illustrates the potential role of domestic jurisdiction. States that have criminalized aggression under domestic law can play a central role in holding aggressors accountable when the International Criminal Court is paralyzed. It can be said that the restricted jurisdictional regime of the International Criminal Court can have two main effects. It simultaneously reduces the coercive potential of complementarity on States to enact sovereignty-driven implementing legislation and increases the need for implementation to avoid impunity.

5.1.2 The Restrictions of the “Ordinary” Jurisdictional Regime Depending on the Operationalization of Consent Restrictions can result from requiring a certain form of State consent. The necessity of State consent for the International Criminal Court’s exercise of jurisdiction was a recurring theme during negotiations in Rome, Kampala and New York City.4 At the Rome Conference, discussions included the possibility of establishing a court with universal jurisdiction, irrespective of State consent.5 If consent is required, in 1

See Chap. 2, Sect. 2.3.2. See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute), Article 17. For the principle of complementarity, see also preambular para 10, Articles 1, 18, 19 and 20(3). 2 See Chap. 2, Sect. 2.3.3.1. 3 See, in detail, Chap. 2, Sect. 2.3.3.1. 4 For the Rome Conference, see Kaul 2002, pp. 595 et seq. For the Kampala Conference, see Barriga 2012, p. 43. For the Assembly of States Parties in New York City, see Kreß 2018, p. 8. 5 See Kaul and Kreß 1999, pp. 145 et seq.

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contrast, the restrictions of the jurisdictional regime vary, depending on the operationalization of consent. This includes the questions of which State(s) need to consent, whether consent shall be given in a general manner by previous ratification, or in a specific manner for each investigation.6 It also includes the questions of whether consent can be presupposed by not opting out, or requires the active step of opting in.7 As to the question of which States need to consent, the jurisdictional regime tends to be more limited the more States need to cumulatively give their consent. Moreover, the limitation depends on whether consent is required by the State on whose territory the crime is committed (territorial State), the national State of the accused, the national State of the victim, or the State in whose territory the suspect is present (custodial State). If crimes are committed by State officials, requiring the consent of the national State of the accused is a more serious restriction than requiring the consent of the custodial State. The latter does not necessarily imply a conflict of interests. The custodial State only happens to have a jurisdictional link due to the post-crime travel of the defendant. As we will see in more detail from the perspective of behavioral economics,8 restrictions are also more serious if consent needs to be actively expressed by opting in. The restrictions set up by the requirement of consent, however, do not necessarily lead to a weak Court. The chosen operationalization of consent can have a positive effect on the number of consenting States by creating an incentive to give consent9 or by presuming consent,10 which ultimately broadens the jurisdictional reach of the Court.

5.1.3 The Requirement of Consent from the Perspective of International Adjudication and Criminal Adjudication The jurisdictional design of the International Criminal Court raises the question of consent due to its nature as an international court which is mandated to establish individual criminal responsibility instead of State responsibility.

6

See on the case-by-case proposal, Schabas and Pecorella 2021a, para 11; Zimmermann 1998, p. 206. For an overview of the spectrum of consent for international tribunals in general, see Amerasinghe 2009, pp. 77 et seq. 7 See Article 15bis(4) of the ICC Statute and former Article 124 of the ICC Statute for the ability to opt out. For the requirement to opt in, see ICC Assembly of States Parties 2017c, para 2 and the opt-in proposal at the Rome Conference as explained in Schabas and Pecorella 2021a, para 11. 8 See Sect. 5.3.2.2 below. 9 See Sect. 5.2.6.3 below. 10 See Sect. 5.3.6.2 below.

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It is “a truism that international judicial jurisdiction is based on and derives from the consent of States”.11 Due to the sovereignty of States,which literally negates the existence of supreme power,12 international courts are not competent to decide disputes between States, except where those States have consented.13 The International Court of Justice, for example, requires the consent of (at least) the applicant and respondent States in interstate proceedings.14 The consent requirement is also consistent with international treaty law, whereby a treaty can only be binding on States that have become party to the treaty.15 A treaty which establishes an international court should be no exception. Consent is thus a principle of international adjudication,16 which governs interstate proceedings.17 In contrast, consent is an alien concept for criminal adjudication. Several principles of jurisdiction under international law allow States to exercise criminal jurisdiction. Territorial jurisdiction is the most uncontroversial one.18 According to this fundamental principle of criminal law, persons are subject to the territorial jurisdiction of the State on the territory of which they committed the crime.19 Requiring the consent of another State indirectly concerned would presuppose the other State’s exclusive jurisdiction over the individual.20 States, however, do not have unfettered jurisdiction over their nationals abroad.21 Their nationals can also fall under the jurisdiction of another adjudicative entity if they commit a crime with a jurisdictional link to another State.22 It could be argued that the International Criminal Court is an international court established by a treaty and therefore requires consent of the States concerned.23 As a criminal court dealing with individual criminal responsibility, however, it has never 11

Thirlway 1998, p. 4. Sovereignty derives from the Latin words “suprema potentas”, meaning supreme power. 13 Akande 2010, pp. 12 et seq.; Amerasinghe 2009, p. 70; Lee 1999, p. 28. 14 See Statute of the International Court of Justice, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (ICJ Statute), Article 36. 15 See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980 (VCLT), Article 34. See also Akande 2010, p. 10. 16 Akande 2010, p. 12; Shany 2014, p. 782; Thirlway 1998, p. 4. 17 Amerasinghe 2009, p. 70; Tomuschat 2012, para 19. For the question of whether the consent principle in form of the Monetary Gold principle extends to advisory opinions and even to the International Criminal Court, see Akande 2010, pp. 22 et seq.; d’Argent 2019, para 28. For a rejection of the Monetary Gold principle in proceedings before the International Criminal Court, see ICC (PTC), Situation in Palestine, Decision, 5 February 2021, paras 58 et seq.: “The Chamber considers that the Monetary Gold principle does not apply to the ICC.” 18 See, in detail, Chap. 7, Sect. 7.3. 19 See, in detail, Jeßberger 2011, pp. 225 et seq. 20 See Scharf 2001, p. 75 who argues that the assumption of the exclusive jurisdiction of a State over its nationals “reflects a colonialist concept that was prevalent in earlier centuries but has little relevance to modern practice”. 21 Cormier 2020, p. 21. 22 Jeßberger 2011, p. 245. 23 For a thorough discussion, see Akande 2010. 12

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been established to make findings on State responsibility.24 Instead, it follows the understanding of criminal adjudication where territorial jurisdiction and not consent is a fundamental principle. If States can do together what they can do alone,25 consent by all States concerned may not be required for the exercise of jurisdiction by an international criminal court. As the chapter will show, the jurisdictional regime of the International Criminal Court is more consensual when it comes to the crime of aggression. From a criminal law perspective, requiring any form of consent by the national State of the accused in addition to the conditions of territorial jurisdiction appears odd. From the perspective of international adjudication, in contrast, a form of consent by the States concerned (including the national State of the accused) is more comprehensible. This is especially true as there is no crime under international law which is more directly linked to a State act than the crime of aggression.

5.1.4 Chronological Structure and Focus on Jurisdictional Regime upon State Referral and Proprio Motu Investigations To show the extent to which the jurisdictional regime is more restricted regarding the crime of aggression, this chapter takes a chronological look at the evolution. It starts with the Rome Conference in 1998, before moving to the Kampala Review Conference in 2010 and to the Assembly of States Parties in New York City in 2017. It focuses on the assessment of the “ordinary” jurisdictional regime of the Court triggered by State referral or proprio motu investigations. The second jurisdictional regime, triggered by UN Security Council referral, remains largely unchanged.26 The chronological account helps to understand why the concerns already raised after the Rome Conference about the initial dependency upon the Security Council27 are more acute regarding the crime of aggression. Moreover, the chronological account shows the reoccurrence of the same arguments in the drafting process. Lastly, it suggests that the controversies that arose in Kampala and New York City can be traced back to the ambiguities from what was adopted in Rome.

24

See ICC Statute, Article 25(1): “The Court shall have jurisdiction over natural persons pursuant to this Statute.”; ICC Statute, Article 25(4): “No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law”. 25 International Military Tribunal 1950, p. 444. 26 Zimmermann and Freiburg-Braun 2021b, para 1. Except for the postponement of the entry into force and the jurisdiction ratione temporis as regulated in Article 15ter(2)–(3) of the ICC Statute. 27 Kaul 2002, p. 614. Similarly, Schabas and Pecorella 2021a, para 35.

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5.2 The Rome Compromise: Single-Ratification Regime The regime States adopted at the Rome Conference is the benchmark for later assessing the restrictions installed for the jurisdictional regime over the crime of aggression. At the Rome Conference, States established the International Criminal Court with jurisdiction over the most serious crimes of international concern.28 According to Article 5(1) of the ICC Statute, the crimes States subjected to the Court’s jurisdiction are genocide, crimes against humanity, war crimes and the crime of aggression.29 However, the crime of aggression was not defined in Rome. According to the former Article 5(2) of the ICC Statute, “the conditions under which the Court shall exercise jurisdiction” with respect to the crime of aggression were still to be determined by a provision “adopted in accordance with articles 121 and 123”.30 The jurisdictional provisions adopted in Rome use language that is not specifically oriented towards genocide, crimes against humanity and war crimes but set up a general jurisdictional regime. Depending on the reading of the ambiguously drafted Article 5(2) of the ICC Statute, this “default jurisdictional regime”31 could have been applied to the crime of aggression without modification. In case of a State referral,32 or an investigation initiated by the prosecutor on their own initiative (proprio motu),33 the jurisdiction of the Court can be described as a “single-ratification regime”,34 based on the principles of territoriality35 and nationality.36

5.2.1 Ratification by the Territorial State or National State of the Accused According to Article 12(2)(a) and (b) of the ICC Statute, this regime requires the crimes to be either committed on the territory, or by a national of a State which has become party to the ICC Statute. In other words, the jurisdictional model adopted at the Rome Conference operationalizes consent by requiring the ratification of either 28

See ICC Statute, Article 1. On the Rome Conference, see Schabas 2016, pp. 22 et seq. The inclusion of the crime of aggression was a particular concern of the Non-Aligned Movement, see Schabas 2016, p. 23; Schabas 2004, p. 134. 30 On the discussions about the crime of aggression at the Rome Conference, see Clark 2017; McDougall 2021, pp. 9 et seq.; Schabas 2004, pp. 131 et seq. 31 See Barriga and Blokker 2017a, p. 654. 32 See ICC Statute, Article 13(a) and Article 14. 33 See ICC Statute, Article 13(c) and Article 15. 34 For the use of the term when discussing the Kampala compromise, see Barriga and Blokker 2017a, p. 664. 35 See ICC Statute, Article 12(2)(a). Schabas and Pecorella 2021a, paras 15 et seq. 36 See ICC Statute, Article 12(2)(b). See Cryer et al. 2019, p. 148; Schabas and Pecorella 2021a, paras 24 et seq.; Werle and Jeßberger 2020, para 270. 29

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the territorial State or the national State of the suspect, rather than their cumulative ratifications.37

5.2.2 Drafting History: Compromise Between Universal Jurisdiction and More Consensual Forms of Jurisdiction The single-ratification regime was adopted in Rome as a compromise between several proposals, whereby the German proposal and the United States proposal illustrate the extreme ends of the spectrum.38 According to the German proposal, the International Criminal Court should have been vested, just like States, with universal jurisdiction over core crimes. This would have allowed prosecution of any suspect “regardless of whether the territorial State, his or her national State, the custodial State or any other State has accepted the jurisdiction of the Court”.39 This would have given the International Criminal Court global reach, even without a UN Security Council referral. Ratifying the ICC Statute would have only made a difference in terms of cooperation. It would have put the ratifying State under an obligation to cooperate with the Court.40 For the exercise of jurisdiction, the German proposal would have been a “zero ratification-regime”. It did not require any concerned State to have ratified the Statute in order to provide a jurisdictional link. Other proposals, in contrast, made the exercise of jurisdiction dependent upon the acceptance or ratification by one or more States concerned. For example, the territorial State, the national State of the suspect, the national State of the victim or the custodial State would be required to ratify.41 Among these proposals, the United States’ was one of the stricter ones.42 Unless the UN Security Council referred a 37

On how to become a party to the ICC Statute, see ICC Statute, Article 125. Acceptance and approval are alternative terms to ratification used depending on the domestic preference, see Clark and Meisenberg 2021a, para 8. The term “ratification” will be used in the following to capture the other terminological alternatives. The term “acceptance” seems broader and is also used in Article 12(3) of the ICC Statute. 38 On the various, and even more extreme proposals, see Cryer et al. 2019, p. 149; Kaul 2002, pp. 596 et seq.; Kaul and Kreß 1999, pp. 152 et seq.; Schabas and Pecorella 2021a, paras 5 et seq.; Wilmshurst 1999, p. 132. 39 Germany 1998, p. 2. This proposal was already made at the Preparatory Committee. For a more detailed analysis, see Kaul 2002, pp. 597 et seq.; Schabas and Pecorella 2021a, paras 6 et seq. The German proposal, however, discussed universal jurisdiction only with regard to genocide, crimes against humanity and war crimes. 40 Germany 1998, p. 3. 41 See, in particular, the widely supported Korean proposal which required only one of the mentioned States to have accepted the jurisdiction, see Lattanzi 1999, p. 57. See also Kaul 2002, pp. 599 et seq.; Kaul and Kreß 1999, p. 153; Schabas and Pecorella 2021a, para 8. 42 See also the even more extreme French proposal submitted prior to the Rome Conference to the Preparatory Committee which “took the principle of statal consent almost to its logical extreme”

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situation, it required the ratification of both the territorial State and the national State of the accused.43 This can be described as a “double-ratification regime”, based on territorial and nationality jurisdiction. The regime ultimately adopted was stricter than the German proposal but not as strict as the US proposal. It rejected both universal jurisdiction and the need for double ratification,44 by requiring the single ratification45 by either the territorial State or the national State of the accused. The additional requirement of ratification by the national State of the accused was not acceptable to the overwhelming majority. It was perceived as “causing a probable paralysis” of the International Criminal Court.46 Universal jurisdiction was not necessarily rejected in Rome for legal reasons.47 It was easier to gather broad political support for territorial jurisdiction and nationality jurisdiction. They are the most traditional links of jurisdiction, “the legality of which under international law is undisputable”.48

5.2.3 Inclusion of Nationals of Non-States Parties Under Territorial Jurisdiction A special feature of the single-ratification regime is the possibility of exercising jurisdiction over nationals of non-States Parties where there is a territorial nexus to a State Party. According to Article 12(2)(a) of the ICC Statute, the International Criminal Court has jurisdiction upon State referral or proprio motu investigations

by requiring for every individual case the specific consent of all States directly concerned (i.e., the territorial State, the States of nationality of the suspect, the victim State and, if applicable, the custodial State), see Article 34 of France 1996. On this proposal, Kaul and Kreß 1999, pp. 153 et seq. 43 See United States of America, Proposal Regarding Article 7, UN Doc. A/CONF. 183/C. 1/L.70, p. 247: “Where a situation has been referred to the Court by a State Party [or where the Prosecutor has initiated an investigation,] the Court shall have jurisdiction with respect to a crime referred to in article 5 provided that the following States have accepted the jurisdiction of the Court with respect to the crime in question in accordance with article 7 bis or ter: (a) The State on the territory of which the act or omission in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; and (b) The State of nationality of the accused/suspect with respect to the crime.” See also Schabas and Pecorella 2021a, para 10. 44 Or “conjunctive approach”, see Schabas and Pecorella 2021a, para 12 45 Or “disjunctive approach”, see ibid. 46 Ibid., para 10. 47 Similarly, Werle and Jeßberger 2020, para 274 whereby the German proposal was mainly rejected for political and not for legal reasons. See Scharf 2001, p. 77, whereby no one at the Rome Conference disputed that core crimes were crimes of universal jurisdiction and the consent regime was adopted as a “politically expedient concession to the sovereignty of states in order to garner broad support for the statute”. 48 See Cassese et al. 2013, p. 271; Cryer et al. 2019, p. 149; Kaul 2002, p. 607.

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provided one of the constituent elements of the crime has also taken place on the territory of a State Party.49 The territorial jurisdiction of the Court over nationals of non-States Parties has been famously criticized by the United States since the Rome Conference.50 The reasoning remains essentially the same. It invoked the unlawfulness to create obligations or rights for third States without their consent according to the Vienna Convention of the Law of Treaties (VCLT), the lack of consent by the non-State Party more generally,51 or the unlawfulness of delegating jurisdiction to the Court. These arguments were raised at the Rome Conference in 199852 and at the oral hearing of the International Criminal Court in the situation in Afghanistan almost 20 years later.53 Interestingly, these arguments, which were raised at the Rome Conference by former US Ambassador-at-Large for War Crimes Scheffer, were later described by him as “retrograde”, as “an argument that flies in the face of one of the most fundamental rules of criminal law, namely territorial jurisdiction, …defies commonsense regarding atrocity crimes” and has “gained little traction either with governments party to the Rome Statute or academic circles”.54 Most scholars reject the alleged violation of fundamental principles of international treaty law and of the consent principle more generally.55 It is argued that the mere exercise of territorial jurisdiction by the International Criminal Court does not create any new rights or obligations for non-States Parties.56 For example, it does not create an obligation to cooperate for non-States Parties, which would violate the VCLT. The principle of consent more generally is not violated either, as it is the determination of individual criminal responsibility, and not the legal interests of the accused’s State which form “the very 49

See, in detail, ICC (PTC), Situation Bangladesh/Myanmar, Decision, 6 September 2018, paras 54 et seq. 50 See Scheffer 1999b, p. 18; Scheffer 2013, pp. 233 et seq. See also Morris 2001, pp. 26 et seq.; Morris 2000. 51 On the main contentions against the International Criminal Court’s jurisdiction over nationals of non-States Parties and the difference between the pacta tertiis rule of Article 34 of the VCLT, and the consent principle in general, see Cormier 2020, pp. 12 et seq. 52 See US Ambassador-at-Large for War Crimes D. Scheffer, Statement of the 42nd meeting of the Committee of the Whole, in United Nations 1998b, p. 361, para 21; see also in his scholarly work after the Rome Conference, Scheffer 2013, pp. 233 et seq.; Scheffer 1999a, pp. 70 et seq. 53 The situation in Afghanistan potentially includes crimes committed by US nationals. For the US criticism, see the statement by Sekulow 2019, p. 10. On the Afghanistan situation, see also Trump 2018; Bolton 2018. 54 His criticism particularly concerns the argument based on the VCLT. The rest of the statement is rather ambiguous. Scheffer appeared as an amicus curiae in the oral hearing of the International Criminal Court in the situation in Afghanistan, see Scheffer 2019, p. 30. See also Scheffer 2020. Regarding the argument grounded in the VCLT, he states: “Today it holds very little credibility because of the character of the crimes at issue, the evolution of international criminal law, and the longstanding principle of criminal jurisdiction over one’s own territory.” 55 For a detailed discussion and rejection of the US reasoning, see Akande 2003, pp. 620 et seq.; Cormier 2020, pp. 14 et seq.; Kaul 2002, pp. 608 et seq.; Mégret 2001, pp. 251 et seq.; Scharf 2001, pp. 98 et seq. 56 Namely the pacta tertiis rule of Article 34 of the VCLT. See Cormier 2020, p. 16; Lee 1999, p. 29; Mégret 2001, p. 249; Scharf 2001, p. 98.

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subject matter of the decision”.57 As to the alleged unlawfulness of delegating jurisdiction to the International Criminal Court, the presumption under international law seems to be reversed. There is no rule under international law which prohibits the territorial State from voluntarily delegating jurisdiction to the International Criminal Court.58 However, the arguments against territorial jurisdiction once raised but rejected in Rome would come to have a successful revival at the Kampala Conference and the Assembly of States Parties in New York City.

5.2.4 Inclusion of Territory and Nationals of Non-States Parties by Ad Hoc Acceptance, Article 12(3) of the ICC Statute Article 12(3) of the ICC Statute provides a more consent-based possibility for prosecuting nationals of non-States Parties upon State referral or proprio motu investigation. The International Criminal Court can exercise jurisdiction following ad hoc acceptance of jurisdiction by non-State Parties.59 The non-State Party can either be the State on the territory of which the conduct in question occurred,60 or the State whose nationals committed the crime.61 The recent initiation of investigations by the International Criminal Court in the situation of the non-State Party Ukraine concerning war crimes and crimes against humanity allegedly committed by Russian nationals was based on ad hoc acceptance by Ukraine.62

5.2.5 Difference in Reach in Case of a UN Security Council Referral When the UN Security Council refers a situation under Article 13(b) of the ICC Statute, in contrast, the described preconditions of Article 12 of the ICC Statute do not apply.63 The exercise of jurisdiction is not dependent upon the ratification or

57

For a discussion of the principle of consent and its possible violation by the jurisdiction over nationals of non-States Parties, see Akande 2003, pp. 635 et seq.; Cormier 2020, pp. 18 et seq. 58 See Schabas and Pecorella 2021a, para 16. See also Cryer 2005, p. 985. 59 In detail, see Schabas and Pecorella 2021a, paras 30 et seq. See also Kaul 2002, pp. 610 et seq. 60 See ICC Statute, Article 12(2)(a) and (3) 61 See ICC Statute, Article 12(2)(b) and (3). 62 See https://web.dev.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukr aine-i-have-decided-proceed-opening. Accessed 15 September 2022. 63 See Article 12(2) of the ICC Statute, which does not refer to Article 13(b) which deals with Security Council referrals. Bekou and Cryer 2007, p. 50.

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the ad hoc acceptance by the territorial State or the national State of the accused.64 A UN Security Council referral thus bestows the International Criminal Court with “potentially very strong and universal jurisdiction”.65

5.2.6 Critical Account of the Jurisdictional Reach Under the Single-Ratification Regime Even the “Rome compromise”, the benchmark for later assessing the restrictions adopted for the crime of aggression, is “far from perfect”.66 It has been criticized for its limited reach.

5.2.6.1

Significant Difference in Reach Depending on Who Triggered the Jurisdiction

The differences in reach depending on who triggered jurisdiction under Article 13 of the ICC Statute are so significant that they suggest the “co-existence of two different jurisdictional regimes”.67 The “ordinary” jurisdictional regime following a State referral or proprio motu investigation has been described as a “short sword”.68 The jurisdictional regime upon UN Security Council referral, in contrast, is not subject to the “quite restrictive preconditions” under Article 12(2) of the ICC Statute.69 It has thus been compared with a sharp sword,70 equivalent to one of a “permanent ad hoc tribunal”.71 This sharp sword, however, is politically sensitive.72 It depends on a referral by the UN Security Council, a political organ which enjoys broad discretion in decision-making.73 This is aggravated by the veto power of its permanent members, which can block any resolution. Due to the actual or threatened use of their veto power, the UN Security Council was unable, as of 2022, to refer by resolution the armed conflict in Syria to the International Criminal Court.74

64

See ICC Statute, Article 13(b). See, in detail, Schabas and Pecorella 2021b, paras 17 et seq. Kaul 2002, p. 612; Kaul and Kreß 1999, p. 157. 66 Schabas and Pecorella 2021a, para 35. 67 Kaul 2002, p. 612. 68 Ibid.; Kaul and Kreß 1999, p. 172. 69 See ICC Statute, Article 13(b) and Article 15ter in comparison to Article 12 and Article 15bis of the ICC Statute. 70 Kaul and Kreß 1999, p. 172. 71 Kaul 2002, p. 612. See also Schabas 2016, p. 368. 72 Similar concerns were raised by States prior to the Rome Conference, see Schabas 2016, p. 368. 73 Krisch 2012, para 4. 74 On a case study on the actual and threatened use of veto related to the situation in Syria, see Trahan 2020, pp. 260 et seq. 65

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The preconditions for the ordinary jurisdictional regime were expected to “probably curtail the Court’s effectiveness as an independent judicial body for years to come, i.e. until the Statute is ratified by most if not all States”, which meant that initially, the Court would “probably have to rely largely on the Security Counciltriggered jurisdiction”.75 Although this prediction proved to be too pessimistic and many ratifications followed, it clarifies that restrictions of the ordinary regime lead to a dependency upon the UN Security Council. However, this can be compensated by a higher number of ratifications.

5.2.6.2

Weakness: Limited Reach in Case of Identity of Territorial and National State of the Accused

The weakness of the “ordinary” jurisdictional regime is most obvious in internal conflicts, which are today’s most common form of conflict. In internal conflicts, the national State of the accused and the territorial State are typically the same.76 If that State has not accepted the jurisdiction of the Court, the chosen operationalization of consent does not help. The two alternative jurisdictional bases would be the same. The International Criminal Court then depends upon a referral by the UN Security Council and impunity would be a likely scenario.77 This has occurred for crimes committed in the armed conflict by nationals of and on the territory of Syria, which is a non-State Party.78 Due to this risk of the single-ratification regime, based on territorial or nationality jurisdiction, scholars and civil society regret the decision made in Rome. Other proposals would have reduced loopholes and increased the likelihood of accountability.79 The rejected German proposal, for example, would have allowed the exercise of universal jurisdiction, irrespective of any form of consent by a State involved. Other rejected proposals would have added the custodial State80 to the list of States

75

Kaul 2002, p. 614. Similarly, Schabas and Pecorella 2021a, para 35. By ratification of the ICC Statute or by an ad hoc declaration. For this point of criticism, see Kaul 2002, p. 612; Lattanzi 1999, p. 58; Schabas and Pecorella 2021a, para 7; Simpson 2004, pp. 57 et seq. 77 Kaul 2002, p. 612; Schabas and Pecorella 2021a, para 7; Simpson 2004, pp. 57 et seq. 78 Where the International Criminal Court has not yet commenced investigations at the time of writing due to the lack of jurisdiction over the most responsible according to Article 12(2) of the ICC Statute and the failure of the UN Security Council to refer the situation. See, in detail, Trahan 2020, pp. 278 et seq. On the decision against the initiation of investigations, see Office of the Prosecutor 2015. 79 On the German proposal, see Schabas and Pecorella 2021a, para 7. For the same comment on the Korean proposal, see Kaul 2002, p. 613. 80 See the Korean Proposal in Kaul 2002, pp. 599 et seq.; Schabas and Pecorella 2021a, para 8. 76

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that could provide a jurisdictional link to the Court.81 It would have made the territory of States Parties to a risky travel destination for perpetrators of ICC Statute crimes.

5.2.6.3

Strength: Territorial Jurisdiction

The strength of the regime adopted at the Rome Conference is its principled defense of territorial jurisdiction. It allows the Court to exercise jurisdiction without the consent of the national State of the accused if the crime is committed on the territory of a State Party. From the perspective of criminal adjudication, the exercise of territorial jurisdiction without the consent of any other State is anything but revolutionary. Territoriality is the “most traditional”82 principle of jurisdiction and a manifestation of State sovereignty.83 If a person commits a crime on the territory of another State, whether an ordinary domestic crime or a crime under international law, this person cannot challenge the jurisdiction of the territorial State by referring to the lack of consent of their national State.84 This may be surprising in comparison to other international tribunals that are established by treaty and traditionally exercise jurisdiction over States based on the consent given by both the applicant and respondent State.85 The Rome compromise, however, emphasized that the ICC Statute established a criminal court, which does not deal with interstate proceedings. Criminal proceedings do not lead to an encounter of two sovereign States in the courtroom.86 They are devoted to the question of individual criminal responsibility. Expecting the consent of the national State of the accused creates the false impression of conducting a proceeding against the State.87 It also falsely presumes that a State has exclusive jurisdiction over its nationals, even if they commit crimes abroad.88 This is why the exercise of

81

Kaul describes the omission of custodial State jurisdiction as “the most serious deficit of Article 12”, see Kaul 2002, p. 613; Schabas and Pecorella 2021a, para 8. For the reactions from civil society, see Glasius 2005, p. 73. 82 Cassese et al. 2013, p. 271. 83 See Schabas and Pecorella 2021a, para 16. See also Kaul 2002, p. 607. Especially common law countries have based their jurisdiction mainly on the principle of territoriality, see Jeßberger 2011, p. 241. 84 See Cormier 2020, p. 21, whereby the national State of the accused “may intervene diplomatically and the accused is entitled to consular assistance but consent of the State of nationality is not necessary for the foreign domestic prosecution to go ahead”; Kaul 2002, p. 607; Schabas and Pecorella 2021a, para 16. 85 Lee 1999, p. 28. See, e.g., Article 36 of the ICJ Statute. 86 Similarly, Kaul and Kreß 1999, p. 150. 87 Similarly, Kaul 2002, pp. 608 et seq. 88 See Scharf 2001, p. 75, who argues that the assumption of the exclusive jurisdiction of a State over its nationals “reflects a colonialist concept that was prevalent in earlier centuries but has little relevance to modern practice”.

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territorial jurisdiction by the International Criminal Court is not a case of the Court overreaching its jurisdiction.89 It is characteristic of its nature as a criminal court. In retrospect, the rejection of universal jurisdiction and the adoption of the singleratification regime, especially its basis on territoriality, might have had the unforeseen advantage of creating an incentive to ratify the ICC Statute.90 Universal jurisdiction would have provided the International Criminal Court with jurisdiction over crimes committed on the territory of States irrespective of their previous ratification of the ICC Statute.91 Ratification under the universal jurisdiction regime would not promise additional protection, but only carry the burden of additional obligations, such as the obligation to cooperate, which leaves little incentive for States to join the ICC Statute. The single-ratification regime, in contrast, creates an incentive for States to ratify the ICC Statute. They “sanctuarize” or “earmark” their territory as one where perpetrators of crimes under international law risk prosecution by the International Criminal Court, “acting as a sort of supra-national deterrent”.92 This is because ratification by the territorial State suffices for the Court’s exercise of jurisdiction. The asset of the single-ratification regime is its promise of judicial protection for ratifying States under the principle of territoriality of Article 12(2)(a) of the ICC Statute. It promises protection from crimes committed on the territory of ratifying States irrespective of whether the national State of the perpetrator has accepted the jurisdiction, even without a UN Security Council referral. As discussed in the following sections, the jurisdictional reach of the Court upon State referral and proprio motu investigations was further restricted regarding the crime of aggression at the Kampala Conference in 2010 and arguably at the Assembly of States Parties in New York City in 2017. The ordinary jurisdictional regime became more consensual. This led to a partial loss of the asset of the “Rome compromise”, namely the unrestricted principle of territoriality.

5.3 The Kampala Compromise: Soft Consent-Based Regime for States Parties At the Review Conference in Kampala in 2010, States Parties fulfilled the promise of former Article 5(2) of the ICC Statute.93 They adopted provisions that define 89

Schabas and Pecorella 2021a, para 16. Ibid., para 35. They assume that it could have helped to reach the “ambitious target” of 60 ratifications for the ICC Statute to enter into force (see Article 126 of the ICC Statute) already four years after the Rome Conference. Many observers thought that this early fulfillment of the minimum number of ratifications was impressive, see Clark and Meisenberg 2021b, para 2. 91 Schabas and Pecorella 2021a, para 35 92 For this view but with a critical addition, see Mégret 2006, p. 30; Schabas and Pecorella 2021a, para 35. 93 See ICC Statute, Article 5(2): “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting 90

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the crime of aggression94 and set out the conditions under which the Court shall exercise jurisdiction95 regarding this crime.96 As the following sections will show, the “Kampala compromise”97 departs from the jurisdictional regime once adopted in Rome, especially when it comes to the exercise of jurisdiction upon State referral or proprio motu investigations.98 Article 15bis of the ICC Statute describes the jurisdictional reach of the International Criminal Court over the crime of aggression upon State referral or proprio motu investigations.99 The limitations of the “Kampala compromise”, compared to the single-ratification regime as adopted in Rome in Article 12 of the ICC Statute, essentially lie in a different operationalization of consent. The main limitations100 are the ability of States Parties to opt out from the Court’s jurisdiction over the crime of aggression101 (Sect. 5.3.2) and the categorial exclusion of crimes committed on the territory or by the nationals of non-States Parties (Sect. 5.3.3).102 The latter of which might also exclude the possibility for non-States Parties under Article 12(3) of the ICC Statute to accept the jurisdiction of the Court on an ad hoc basis (Sect. 5.3.4). The different operationalization of consent partially undermines the assets of the compromise reached at the Rome Conference. The limitations, however, were the price of overcoming the insistence of some States (especially France and the United Kingdom) which alleged the monopoly of the UN Security Council in determining acts of aggression (Sect. 5.3.2.1).103 The opt-out system could have maintained the essence of Rome due to its general functioning under behavioral economics (Sect. 5.3.2.2). The categorical exclusion of crimes of aggression with a territorial or national link to a non-State Party, in contrast, leads to a far-reaching gap in the jurisdictional regime (Sect. 5.3.3).

5.3.1 In Principle: Single-Ratification Regime In principle, the requirements of Article 12 of the ICC Statute, as established in Rome, apply unless otherwise provided by Article 15bis of the ICC Statute.104 This out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” 94 See ICC Statute, Article 8bis. 95 See ICC Statute, Article 15bis and Article 15ter. 96 See Review Conference of the Rome Statute 2010b. 97 Kreß and von Holtzendorff 2010. See also Blokker and Kreß 2010, p. 892; Wenaweser 2010. 98 See ICC Statute, Article 15bis. 99 See, in detail, Barriga and Blokker 2017a; Zimmermann and Freiburg-Braun 2021a. 100 Barriga and Blokker 2017a, p. 662. 101 See ICC Statute, Article 15bis(4). 102 See ICC Statute, Article 15bis(5). 103 See Kreß and von Holtzendorff 2010, p. 1212. Similarly, Reisinger Coracini 2010, p. 749. 104 For a detailed discussion whether the Court’s jurisdiction over the crime of aggression is based on a single-ratification regime after Kampala: Barriga and Blokker 2017a, pp. 664 et seq.

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follows from the ordinary meaning of the terms of Article 15bis(4) of the ICC Statute which starts with “The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression…”105 A jurisdictional link to exercise jurisdiction over the crime of aggression can thus be provided by either the territorial State (Article 12(2)(a) of the ICC Statute) or the national State of the accused (Article 12(2)(b) of the ICC Statute). The ability to provide a jurisdictional link requires the Kampala Amendments to have entered into force for one of these States.106 The entry into force is regulated by the first sentence of Article 121(5) and takes effect for each ratifying State individually.107 Unless the conditions of Article 15bis of the ICC Statute provide otherwise, the Court’s exercise of jurisdiction under the Kampala compromise is essentially based on the single-ratification regime as established in Rome. This seems to have been the majority view at the Kampala Conference,108 although there were important voices who challenged the compatibility of the singleratification regime with the chosen amendment provision of Article 121(5) of the ICC Statute.109 If Article 121(5) of the ICC Statute had been fully applicable, it would have led to the de facto irrelevance of the “in accordance with Article 12” caveat in Article 15bis(4) of the ICC Statute.110 It would have established a double-ratification regime for the exercise of jurisdiction.

5.3.2 Ability for States Parties to Opt Out, Article 15bis(4) of the ICC Statute Article 15bis(4) of the ICC Statute “provides otherwise” by giving every State Party the right to declare “that it does not accept such jurisdiction by lodging a declaration with the Registrar”. This prevents the Court from exercising jurisdiction over a crime 105

Emphasis added. See Ambos 2010, p. 505; Barriga and Blokker 2017a, p. 655; Kreß and von Holtzendorff 2010, p. 1213; Reisinger Coracini 2010, pp. 773 et seq.; McDougall 2021, pp. 303 et seq.; Zimmermann and Freiburg-Braun 2019, para 329. 106 Kreß and von Holtzendorff 2010, p. 1214. 107 See Review Conference of the Rome Statute 2010b, para 1 where “the amendments to the Statute contained in annex I of the present resolution, which are subject to ratification or acceptance and shall enter into force in accordance with Article 121, para 5…” See ICC Statute, Article 121(5): “Any amendment to Articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance.” 108 This was explained by the Chair of the Review Conference when introducing the draft on the optout regime. See Barriga and Kreß 2011f. See also Clark 2020, para 40; Kreß and von Holtzendorff 2010, pp. 1213 et seq.; McDougall 2021, pp. 303 et seq. 109 See, e.g., Akande 2010, p. 11; Koh and Buchwald 2015, p. 283; Murphy 2015, pp. 543 et seq.; Zimmermann 2016, p. 244. 110 See ICC Statute, Article 121(5) second sentence: “In 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.”

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of aggression arising from an act of aggression committed by that State Party.111 By abstaining from opting out before the crime of aggression is committed, a State Party is presumed to express its “passive consent”112 to the aggression jurisdiction.113 This has been described as a “soft” consent-based regime.114

5.3.2.1

Drafting History: Compromise Between “Rome Unchanged”, a Strict Consent-Based Regime and the Alleged Monopoly of the UN Security Council

As the drafting history of Article 15bis of the ICC Statute reveals, installing this “opt-out” regime was ultimately a compromise. The negotiators were divided into those who supported the unmodified application of the single-ratification regime, as installed by the Rome Conference in Article 12(2) of the ICC Statute,115 and those who preferred a “strict” consent-based system,116 requiring the ratification by all States concerned.117 Installing a regime based on the consent of the aggressor State also carried the potential to overcome the insistence of some countries which alleged the monopoly of the UN Security Council.118 The advocates of the “Rome unchanged” approach,119 preferred the unmodified application of the single-ratification regime as installed in Article 12(2) of the ICC Statute.120 . Since the transboundary crime of aggression is perceived to be committed

111

In detail, see Barriga and Blokker 2017a, p. 657. See also Barriga 2012, p. 52 fn. 260. 113 Similarly, Zimmermann and Freiburg-Braun 2019, para 339, whereby Article15bis(4) “presupposes the consent of States parties to the Court’s exercise of its treaty-based, aggression-related jurisdiction”. On the explanations of the President of the Review Conference, see Barriga 2012, p. 52. 114 See Kreß and von Holtzendorff 2010, p. 1213. 115 See the so-called “ABS proposal” by Argentina, Brazil and Switzerland, in Barriga and Kreß 2011g. 116 For this description, see Kreß and von Holtzendorff 2010, p. 1213. See the proposal by Canada, in Barriga and Kreß 2011h. 117 Barriga and Blokker 2017a, pp. 653, 671; Kreß and Holtzendorff 2010, p. 1203. For a summary of the negotiation history of the Kampala compromise, see also Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 20, paras 2 et seq. 118 Kreß and Holtzendorff 2010, p. 1195. See also Zimmermann and Freiburg-Braun 2019, para 339 who state that the establishment of the opt-out regime aimed mainly at convincing France and Great Britain to stop insisting on the monopoly of the UN Security Council. 119 Which are later described as the “camp protection”. See, in detail, Barriga and Blokker 2017b, p. 622, fn. 3. 120 Combined with a Pre-Trial Chamber “filter” if the UN Security Council does not act. This proposal was made by Argentina, Brazil and Switzerland, Barriga and Kreß 2011g. On this proposal, see also Kreß and Holtzendorff 2010, pp. 1292 et seq.; Trahan 2011, pp. 69 et seq. Roughly half of the delegations preferred the unmodified jurisdictional regime of Article 12(2) of the ICC Statute, see Barriga and Blokker 2017a, p. 653. 112

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in the aggressor State and the victim State,121 each of these “territorial States” could individually provide a jurisdictional link to the Court by ratifying the Kampala Amendments. Consent by the aggressor State would not have been indispensable for the exercise of jurisdiction. This was easier to argue due to the proposal’s reliance on Article 121(4) of the ICC Statute.122 It thereby circumvented the thorny second sentence following the amendment procedure in Article 121(5) of the ICC Statute, which includes conditions for the exercise of jurisdiction diametrically opposed to Article 12(2) of the ICC Statute.123 Proponents of the “strict” consent-based approach124 required the declared acceptance, an “opt-in”, from all States concerned.125 The exercise of jurisdiction independent from the UN Security Council would be impossible without the consent of the alleged aggressor State, even if the victim State had ratified the Kampala Amendments.126 This multiple-ratification regime would have introduced an element of reciprocity which is alien to international criminal justice127 and familiar in interstate proceedings.128 The proposal was essentially equivalent to the conditions for the exercise of jurisdiction as found in the second sentence of Article 121(5) of the ICC Statute129 and in the US proposal at the Rome Conference.130 The nature of the adopted opt-out system as a compromise is suggested by the fact that it stems from an unexpected joint proposal of the previously opposing camps.131 121

See Clark 2010, p. 705. See also Barriga and Kreß 2011a, pp. 629 et seq., paras 28 et seq.; Barriga and Kreß 2011c, paras 38–39. 122 The amendment procedure of Article 121(4) of the ICC Statute requires, however, ratification or acceptance by seven-eighths of the States Parties. 123 See ICC Statute, Article 121(5) second sentence: “In 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.” 124 Which is also known as the “menu approach” and later as the approach of the “camp consent”, Reisinger Coracini 2010, p. 758; see alsoKreß and von Holtzendorff 2010, p. 1203; Trahan 2011, p. 70; Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, pp. 20, paras 2 et seq. 125 See the proposal by Canada, in Barriga and Kreß 2011h, whereby “[all state(s) concerned with the alleged crime of aggression][the state on whose territory the alleged offence occurred and the state(s) of nationality of the persons accused of the crime] have declared their acceptance of this para.” Barriga and Blokker 2017a, pp. 653, 671; Kreß and von Holtzendorff 2010, p. 1203. 126 Barriga 2012, p. 50. 127 Reisinger Coracini 2010, p. 759. 128 See ICJ Statute, Article 36. 129 See Kreß and von Holtzendorff 2010, p. 1203 whereby the Canadian proposal translated Article 121(5) of the ICC Statute into an “opt-in” mechanism. 130 See United States of America, Proposal Regarding Article 7, UN Doc. A/CONF. 183/C. 1/L.70, p. 247. 131 The opt-out system stems from the joint proposal of Argentina, Brazil and Switzerland as well as Canada, which were the countries making the competing proposals before, Barriga and Kreß 2011d. The idea of an opt-out had been explored before by the Chair of the negotiations, though at that time without much response, see Barriga and Kreß 2011b, p. 704 as well as Barriga and Blokker 2017a, p. 671.

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Substantively, it is a “middle ground”132 as it captures concessions from both camps. Those who preferred the unmodified application of Article 12(2) of the ICC Statute had to accept that the required form of passive consent by the aggressor State may open doors for shielding aggression-prone State leaders. Those who preferred a strict consent-based regime had to accept that the opt-out regime was based on a softer form of consent, which offered more protection for potential victim States than an opt-in regime. The better protection is due to higher rates of State acceptance, which is caused by the inertia of States.133 States are less likely to actively opt out. The drafting history of the opt-out system cannot be fully explained as a compromise between two opposing camps which disagreed on the question of consent. The genesis occurred against the background of allegations by some States of a UN Security Council monopoly to determine the existence of an act of aggression.134 It became apparent during negotiations that requiring consent by the alleged aggressor State could eventually make it easier for the permanent members of the UN Security Council to tolerate an alternative jurisdictional regime to the one dependent on the UN Security Council.135 Despite initial reluctance,136 France and the United Kingdom did not block the consensual adoption of the Kampala Amendments. The adopted Article 15bis(6)-(9) of the ICC Statute ensured that the UN Security Council could not block the exercise of jurisdiction upon State referral or proprio motu investigation by abstaining from determining an act of aggression. After the notification of the UN Secretary-General, inaction of the UN Security Council for six months and an authorization by the Pre-Trial Division, the Prosecutor may proceed.137 This guarantee of judicial independence of the Court from the UN Security Council, “one of the fundamental results” reached in Kampala,138 came at a high price. It required the trading of the Rome compromise against a more consensual jurisdictional regime, which excludes States Parties that opted out and non-States Parties.139

5.3.2.2

The Functioning of an Opt-Out System According to Behavioral Economics

In contrast to the categorical exclusion of non-States Parties, the brokered optout system could have still maintained the essence of the Rome compromise. As 132

See Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 20, paras 2 et seq. 133 See, in detail, Sect. 5.3.2.2. See, in particular, Galbraith 2013. See also van Aaken 2014, pp. 464 et seq.; Teichman and Zamir 2019, pp. 1269 et seq.; Zamir and Teichman 2018, p. 427. 134 See, e.g., on the position of France and the United Kingdom, Belliard 2017; Whomersley 2017. 135 See Kreß and von Holtzendorff 2010, p. 1195; Wenaweser 2010, p. 884; Zimmermann and Freiburg-Braun 2019, para 339. 136 Kreß and von Holtzendorff 2010, p. 1204. 137 See ICC Statute, Article 15bis(6) and (8). It thus recognizes the primary but not the exclusive responsibility of the Security Council for the maintenance of international peace and security. 138 Zimmermann and Freiburg-Braun 2021a, para 45. 139 McDougall 2021, p. 258.

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behavioral economics suggests, an opt-out system is not considered to leave serious jurisdictional gaps.140 It flips “the power of inertia in favor of jurisdiction”.141 However, the more common explanation among legal scholars of the functioning of Article 15bis(4) of the ICC Statute is inspired by the rational choice theory.142 They assume there is a political or reputational price to pay when expressly opting out from the aggression jurisdiction.143 The lodging of an opt-out declaration can be “read as an announcement of a State’s desire to ensure that its leaders cannot be held criminally responsible”.144 It could “undermine a State’s ability to claim that its uses of force are lawful” and would likely “expose such States to criticism from international and domestic civil society”.145 Rational States may prefer to avoid such a high political price, which is why Kaul did not expect many opt-out declarations.146 A State’s reputation may suffer more from its rejection of jurisdiction under an optout regime than under an opt-in regime.147 Under an opt-out regime, the lack of acceptance requires the action of opting out. This deviation from the default signals more information about a State’s position.148 The lack of acceptance under an optin system, in contrast, is more ambiguous and does not entail definite reputational costs. It could be excused, for example, “on the basis of a lack of capacity to consider and draft domestic legislation to enable domestic legislation”.149 Although rational choice theory classically perceives the preferences of States as independent to the framing of the jurisdictional regime,150 the reputation of a State may depend on whether it deviates from the default rule.151 Non-acceptance under an opt-in system is the “default” and does not necessarily lead to high political costs. There is, however, an additional explanation for the benefits of the opt-out regime stemming from behavioral economics. As Galbraith asserts, rational choice theory cannot fully explain why jurisdictional regimes based on opt-in clauses empirically

140

Galbraith 2013. Van Schaack 2011a, p. 585. 142 See for a classical definition of rationality whose assumption have been transferred to collective actors such as States, van Aaken 2014, p. 425 whereby all human behavior can be viewed as involving participants who maximize their utility from a stable set of preferences and accumulate an optimal amount of information and other inputs in a variety of markets. See for a rational choice theory explanation of the high participation rate in case of opt-out clauses, Galbraith 2013, p. 346. 143 Kaul 2010, p. 665; Politi 2012, pp. 277 et seq.; Schabas 2016, p. 422; Trahan 2011, p. 91. See also van Schaack 2011a, p. 585 whereby the opt-out system offers “a toehold” from which civil society can “mount a political shame campaign to encourage states to decline the opt-out option”. 144 McDougall 2021, p. 36. 145 Ibid. 146 Kaul 2010, p. 665. 147 Galbraith 2013, p. 347. 148 Ibid. 149 McDougall 2021, p. 36. 150 Galbraith 2013, p. 314; van Aaken 2014, p. 427. 151 Galbraith 2013, p. 347. 141

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result in dramatically lower State participation than those based on opt-out clauses.152 Despite some reputational costs from opting out that might influence the decision of rationally acting States, Galbraith considers the required effort to opt out as marginal.153 The signal sent by an opt-out is weak.154 She emphasizes that a State only plays by the book if it uses the negotiated opt-out option.155 She assumes that the decision-making of States is mainly influenced by the “framing effect”, as originally developed from behavioral economics studies on individuals.156 According to the “framing effect”, individuals are influenced by how choices are presented, for example, as regards organ donations.157 Individuals are biased in favor of whatever option is framed as the status quo or default rule that applies in case of inaction.158 If this finding is applicable to State conduct, as Galbraith suggests,159 States do not make the same substantive decision irrespective of the framing of the jurisdictional regime. They do not make the same decision on whether they want to empower the International Criminal Court to hold individual aggressors accountable. In particular, States with weak preferences160 simply opt for the default rule by doing nothing, instead of making an affirmative step to the contrary. Due to this default effect, the opt-out system installed by Article 15bis(4) of the ICC Statute keeps most States within the aggression jurisdiction of the International Criminal Court.161 By default, States Parties are “in” the jurisdictional reach of the International Criminal Court.162 Only States with strong preferences would deviate from this default and actively opt out. The low number of States Parties, namely two out of 123, that have declared

152

See ibid., p. 335. In her assessment of over 300 multilateral treaties, she notices that treaties with opt-in clauses to the jurisdiction of the International Court of Justice have a State acceptance on average of five percent of these clauses, while treaties with an opt-out option to the jurisdiction of the International Court of Justice have a State acceptance of 80 percent. 153 Galbraith 2013, pp. 346 et seq. 154 Ibid. 155 Ibid. 156 Ibid., p. 314. 157 Donation rates are twice as high in countries with opt-out systems where people are presumed to have consented to organ donation unless declared otherwise, see Johnson and Goldstein 2004, pp. 1714 et seq. See also Galbraith 2013, p. 352; Thaler and Sunstein 2009, pp. 175 et seq.; van Aaken 2014, pp. 429 et seq. 158 Galbraith 2013, p. 349. See also Samuelson and Zeckhauser 1988, p. 8; Sunstein 2014, p. 721 Thaler and Sunstein 2009, pp. 34 et seq. 159 In favor: van Aaken 2014; Teichman and Zamir 2019, pp. 1264 et seq.; Zamir and Teichman 2018, pp. 423 et seq. 160 See Galbraith 2013, p. 347. 161 The benefit of this default effect might have also been seen in the negotiations leading to Kampala, where an opt-out system was briefly discussed as one which would “strongly reduce the number of States who were beyond the Court’s jurisdictional reach” as it reverses the “default situation”, see Barriga and Kreß 2011b, p. 704, para 41. 162 Barriga and Kreß 2011b, p. 704, para 41; Zimmermann and Freiburg-Braun 2019, para 339.

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an opt-out from the aggression jurisdiction could be perceived as affirming this hypothesis.163 This is why the element of consent, as operationalized in the opt-out system in Article 15bis(4) of the ICC Statute, does not lead to a significant limitation of the Court’s jurisdiction. It essentially maintains the essence of the Rome compromise for States Parties. Due to functioning according to behavioral economics, it is not overstated to describe the opt-out system as a success.164

5.3.3 Categorical Exclusion of Territory or Nationals of Non-States Parties, Article 15bis(5) of the ICC Statute The categorical exclusion under Article 15bis(5) of the ICC Statute of crimes of aggression that are committed by the nationals of a non-State Party, or on its territory is the “most significant”165 and “sweeping departure”166 from the jurisdictional regime once adopted in Rome. The departure of Article 15bis(5) of the ICC Statute lies in a stricter operationalization of consent.167 Under the unmodified Rome regime, jurisdiction could have been exercised over crimes of aggression arising from acts of aggression by nonStates Parties, or directed against them. This is due to the understanding of territorial jurisdiction covering both the aggressor State and the victim State.168 Under the Kampala compromise, however, consent in the form of ratification by one of the territorial States169 does not suffice.170 The exercise of jurisdiction is excluded once the crime of aggression has a territorial or nationality link to a non-State Party, thus a State which has not given consent.171 This excludes “Afghanistan-like” situations, where non-States Parties—like the United States—fear criminal prosecution of their nationals for crimes committed on the territory of State Parties. It is also the main

163

Only two States have lodged a declaration under Article 15bis(4) of the ICC Statute, namely Guatemala (2018) and Kenya (2015). See https://www.icc-cpi.int/resource-library#. Accessed 15 September 2022. 164 For an appraisal of the adopted opt-out system, see, e.g., Kreß and von Holtzendorff 2010, p. 1216. 165 Ibid., p. 1215. 166 Barriga and Blokker 2017a, p. 658. Similarly, Statement by Japan in Barriga and Kreß 2011e. 167 Van Schaack 2011a, p. 578 whereby the ability to opt out and the non-State Party exclusion are premised on the principle of State consent. 168 See Clark 2010, p. 705. See also Barriga and Kreß 2011a, pp. 629 et seq., paras 28 et seq.; Barriga and Kreß 2011c, paras 38–39. 169 Or even by the national State of the accused. 170 Barriga 2012, p. 50. 171 Barriga and Blokker 2017a, p. 659.

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reason why the International Criminal Court is currently unable to initiate investigations concerning the crime of aggression allegedly committed by Russian nationals on the territory of Ukraine in 2022. Article 15bis(5) of the ICC Statute additionally excludes crimes of aggression directed against non-States Parties and its population from protection, even if the act of aggression arises from a State that has given its consent by ratification. Although this constitutes a significant limitation of the Court’s jurisdiction, the exclusion of non-State Parties as well as the opt-out system were the price to pay for overcoming the insistence on a UN Security Council monopoly.172

5.3.4 Possibility for Non-States Parties to Declare an Ad Hoc Acceptance Under Article 12(3) of the ICC Statute? It remains unclear whether non-States Parties can accept the jurisdiction by an ad hoc declaration under Article 12(3) of the ICC Statute, despite the categorical exclusion of crimes of aggression committed on the territory, or by nationals of non-States Parties under Article 15bis(5) of the ICC Statute.173 In favor of such a possibility for non-States Parties, it could be argued that acceptance under Article 12(3) of the ICC Statute always concerns an overall situation and thus cannot be tailored to exclude a particular crime.174 Moreover, it is teleologically argued that the exclusion under Article 15bis(5) of the ICC Statute serves to protect non-States Parties from an exercise of jurisdiction to which they have not explicitly consented. Whenever a non-State Party expressed consent under Article 12(3) of the ICC Statute, however, this telos would not be undermined by the exercise of jurisdiction.175 However, allowing non-States Parties to accept the aggression jurisdiction on an ad hoc basis would advantage non-States Parties over States Parties.176 States Parties aggressed by nationals of non-States Parties cannot unilaterally create the preconditions to the exercise of jurisdiction by ratifying the Kampala Amendments. This is due to the categorical exclusion of nationals of non-States Parties under Article 15bis(5) of the ICC Statute. Non-States Parties that are aggressed by nationals of States Parties, in contrast, could confer jurisdiction on the Court, even after the fact, if Article 12(3) of the ICC Statute applied. This asymmetry would create a “sitting 172

Kreß and von Holtzendorff 2010, p. 1212. For an overview of the matters that remained unclear after Kampala, see Stahn 2010, pp. 880 et seq. 174 Zimmermann and Freiburg-Braun 2021a, para 31. This is at least what Rule 44(2) of the ICC Rules of Procedure and Evidence aims to clarify when it states that such a declaration has as a consequence the acceptance of jurisdiction “with respect to the crimes referred to in article 5 of relevance to the situation.” Schabas and Pecorella 2021a, para 31. 175 Zimmermann and Freiburg-Braun 2021a, para 31. 176 Akande and Tzanakopoulos 2018, pp. 954 et seq.; Kreß et al. 2012, p. 88; Kreß and von Holtzendorff 2010, p. 1213 fn. 113; McDougall 2021, p. 336. 173

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duck” scenario, in which the nationals of States Parties become an “easy target” for prosecution.177 An even better argument against the application of Article 12(3) of the ICC Statute can be developed based on lex specialis considerations. If Article 15bis(5) of the ICC Statute is the lex specialis to the default regime under Article 12 of the ICC Statute, it also excludes the possibilities for non-States Parties to accept the aggression jurisdiction ad hoc under Article 12(3) of the ICC Statute.178

5.3.5 Difference in Reach in Case of UN Security Council Referral, Article 15ter of the ICC Statute The jurisdictional reach of the International Criminal Court upon UN Security Council referral regarding the crime of aggression is regulated in Article 15ter and read in conjunction with Article 13(b) of the ICC Statute.179 The Court’s jurisdiction upon UN Security Council referral was uncontroversial in the drafting process of the Kampala Amendments.180 It was even recommended by the permanent members of the UN Security Council that it be the sole mechanism for triggering the Court’s aggression jurisdiction.181 Article 15ter of the ICC Statute does not contain important departures from the respective regime which was established at the Rome Conference for the other core crimes.182 In situations referred by the UN Security Council, the Court enjoys “potentially very strong and universal jurisdiction”.183 In contrast to the regime applicable in case of a State referral or proprio motu investigations, neither States Parties that have previously declared an opt-out nor non-States Parties are excluded.184

177

For a comparable “sitting duck” scenario in case a State accepts the jurisdiction of the International Court of Justice as compulsory in relation to any other State which does the same, see Alexandrov 2006, pp. 34 et seq.; d’Amato 1985, pp. 387 et seq.; Galbraith 2013, p. 348. However, a reasoning of “symmetric liability” may not be central in international criminal law which is concerned with the prosecution of individuals for the “most serious crimes of international concern” and less bothered with the interests of States that stand behind these nationals. See also Kaul and Kreß 1999, pp. 174 et seq. 178 Barriga and Blokker 2017a, p. 656; Kreß and von Holtzendorff 2010, p. 1213; Manson 2010, p. 441; McDougall 2021, p. 336. 179 See, in detail, Blokker and Barriga 2017; Schabas 2016, pp. 427 et seq.; Zimmermann and Freiburg-Braun 2021b. 180 Kreß and von Holtzendorff 2010, pp. 1211; Zimmermann and Freiburg-Braun 2021b, para 2. 181 Kaul 2010, p. 664. 182 Blokker and Barriga 2017, p. 651 Except for the different provisions for entry into force and for the activation of the Court’s jurisdiction in Article 15ter(2) and (3) of the ICC Statute. 183 Kaul 2002, p. 612. See also Kaul and Kreß 1999, p. 157. 184 The irrelevance of any form of consent is confirmed by Understanding 2 to the Kampala Amendments, see Review Conference of the Rome Statute 2010b, Annex III, Understanding 2. See also Blokker and Barriga 2017, p. 649; Kreß and von Holtzendorff 2010, p. 1211.

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5.3.6 Critical Account of the Jurisdictional Reach Under the Soft Consent-Based Regime for States Parties The Kampala compromise led to a jurisdictional regime upon State referral and proprio motu investigation over the crime of aggression, which is restricted compared to the single-ratification regime as established in Rome.185 This shortened the “sword” of the ordinary jurisdictional regime and increased the dependency upon the politically sensitive “sword” of the regime following a UN Security Council referral.

5.3.6.1

Weakness: More Consensual Jurisdiction

The weakness of Kampala stems from the adoption of a more consensual jurisdictional regime, compared to the one installed at the Rome Conference. The chosen operationalization of consent offers States Parties the ability to opt out and categorically excludes crimes committed on the territory and by nationals of non-States Parties. This can be perceived as a partial limitation of territorial jurisdiction, the main asset of the Rome compromise. Territorial jurisdiction would have allowed the protection of the territory of ratifying States irrespective of a presupposed consent of the aggressor State,186 or its membership in the ICC Statute.187 The ability to opt out can be criticized for undermining the deterrent function of criminal law,188 by installing an “emergency exit” for aggression-prone States Parties.189 Especially for a crime which can, per definitionem, only be committed by a person from the political or military leadership circle of a State,190 the potential perpetrators may be able to bring their State to opt out before aggressing another State. This is why they do not need to fear punishment.191 The categorical exclusion of non-States Parties192 has been described as “a major victory for the United States and a vindication of its prior position”.193 It removes many potential aggression cases, as suggested by the documented militarized interstate disputes of the Correlates of War Project. It excludes most States that are the

185

For other voices that deplore the Kampala regime as a restricted one, see Barriga and Blokker 2017a, p. 662; Kreß and von Holtzendorff 2010, p. 40. 186 But see ICC Statute, Article 15bis(4). 187 But see ICC Statute, Article 15bis(5). 188 On the purposes of punishment, see Jeßberger and Geneuss 2020. 189 See also for a more general critique on any form of consent Barriga and Kreß 2011b, p. 702, para 36: “A system that required the consent of the future aggressor State would not have any deterrent effect”. 190 See ICC Statute, Article 8bis(1). 191 The deterrent effect of criminal law is said to be mainly dependent upon the certainty of punishment, see Beccaria 1963, p. 58. 192 ICC Statute, Article 15bis(5). 193 Van Schaack 2011a, p. 591.

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first users of force.194 If it was applied to militarized interstate disputes from 1946 to 2001,195 it would exclude 70 per cent of potential acts of aggression.196 The exclusion of non-States Parties is one of the reasons why the International Criminal Court cannot exercise jurisdiction over Russian leaders for the crime of aggression allegedly committed against Ukraine in 2022. Due to Article 15bis(5) of the ICC Statute, the ad hoc acceptance of Ukraine only allows the Court to investigate war crimes, crimes against humanity and genocide. Perceiving the chosen operationalization of consent as a limitation to the territorial jurisdiction of the Court explains why Kampala could have lowered the incentive for States to “sanctuarize”197 their territory by ratification. Ratification of the Kampala Amendments does not promise States global judicial protection by the Court from crimes committed on their territory. It only promises the protection from acts of aggression by other States Parties198 which have not opted out.199 Due to the presumably lower incentive to ratify, it is unlikely that the weakness of the consensual Kampala regime is quickly compensated by high numbers of ratifications. The restrictions imposed by Article 15bis of the ICC Statute for the “ordinary” jurisdictional regime would not be alarming if the UN Security Council took its “primary responsibility for the maintenance of international peace and security”200 seriously and referred aggression-relevant situations. On paper, UN Security Council referrals are a powerful sword which allow the exercise jurisdiction over nationals of States Parties, non-ratifying States Parties, States Parties that declared an opt-out and non-States Parties. Even if permanent members of the UN Security Council vetoed situations where they were the first users of force, this would still leave the majority of first uses of force in militarized interstate disputes in the pool of referable

194

Brown 2014, p. 650. The Militarized Interstate Dispute (MID) data of the Correlates of War Project are among the most widely used and analyzed datasets in the study of international conflict and international relations. By definition, “Militarized interstate disputes are united historical cases of conflict in which the threat, display or use of military force short of war by one member state is explicitly directed towards the government, official representatives, official forces, property, or territory of another state. Disputes are composed of incidents that range in intensity from threats to use force to actual combat short of war”, see Jones et al. 1996, p. 163. For an analysis of the dataset from 1946 to 2001 with respect to the crime of aggression, see Brown 2014. For the table of the first users of force in Militarized Interstate Disputes (1946–2001), see Brown 2014, p. 663. 196 See Brown 2014, p. 662. Brown considered those uses of force as potentially relevant acts of aggression that had a highest action in dispute [HiAct] of 12 or higher, meaning these disputes involved: border violation, blockade, occupation of territory, seizure, attack, clash, declaration of war, use of CBR weapons, begin of interstate war or joining of an interstate war. See MID 5.0 Codebook, p. 3. 197 Mégret 2006, p. 13. 198 Non-States Parties are excluded, see ICC Statute, Article 15bis(5). 199 See ICC Statute, Article 15bis(4). 200 Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter), Article 24(1). 195

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situations.201 Neither the past record of determinations of acts of aggression under Article 39 of the UN Charter,202 nor UN Security Council referrals of situations involving other core crimes,203 give hope for an engaged practice of the UN Security Council to refer aggression-relevant situations in the future.

5.3.6.2

Strength: Independence of the Court and Soft Consent-Basis

The strength of the Kampala compromise is that States overcame the erroneously claimed monopoly of the UN Security Council and defended the judicial independence of the Court. They accomplished this by installing a “soft” instead of a “strict” consent-based regime. Given that permanent members of the UN Security Council insisted on the monopoly of the UN Security Council,204 which was also recommended by the International Law Commission in its 1994 Draft Statute,205 it is “most remarkable”206 that States defended the exercise of jurisdiction following State referral or proprio motu investigations. It was defended as one which is not dependent upon a prior determination of an act of aggression by the UN Security Council. The UN Security Council may have the “primary responsibility” in the maintenance of international peace and security, but this is not to be equated with an exclusive responsibility in determining acts of aggression.207 It “exceeds the expectations that one could have reasonably entertained before Kampala”208 that decoupling the Court from the determinations of the political organ of the UN Security Council was possible by installing a “soft”, instead of a “strict”, consent-based regime. States thereby rejected in Kampala an operationalization of consent, which was proposed by the United States, but which was unacceptable to 201

See Table 1 “First users of force in Militarized Interstate Disputes, 1946-2001” in Brown 2014, p. 663. Brown found 1738 potential cases of acts of aggression. 22 % of them (385 in total) were committed by the permanent members of the Security Council (China, France, Russia, the United Kingdom and the United States). For a similar finding, see Grover 2019, p. 166. 202 See in detail, Strapatsas 2017. For the political reasons why the Security Council might have declined to make an aggression determination, see van Schaack 2011a, p. 567. 203 There were only two referrals at the time of writing, namely Darfur and Libya. 204 See the statement by France after the adoption of the Kampala Amendment: “In article 15 bis, para 8, the text restricts the role of the United Nations Security Council and contravenes the Charter of the United Nations under the terms of which the Security Council alone shall determine the existence of an act of aggression.” 205 See Article 23(2) of International Law Commission 1994: “A complaint of or directly related to an act of aggression may not be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint.” 206 Kreß and von Holtzendorff 2010, p. 1216. 207 See UN Charter, Article 24. See also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 2004, p. 136, para 26; Blokker 2007, pp. 878 et seq.; Kreß 2015, p. 566; Webb 2016, p. 128. 208 See also Kreß and von Holtzendorff 2010, p. 1216; McDougall 2021, p. 352.

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the overwhelming majority at the Rome Conference.209 This is why the soft consentbased regime is both a weakness and a strength of the Kampala compromise. The ability to opt out can be an “emergency exit” for aggressors who stick to formalities. It can also be considered as a concession to the detriment of territorial jurisdiction, which does not require the consent of the national State of the accused. However, the opt-out system is still a success considering the more extreme proposals of consensual jurisdiction in Kampala. It is a success given the expected broader jurisdictional reach in comparison to opt-in systems due to the status quo bias of States with weak preferences as research from behavioral economics suggests. Although delegations left Kampala under the impression that a consensus compromise had been reached, an issue which had the potential to undermine the outcome appeared to have only presumably been resolved. The issue was Article 121(5) of the ICC Statute as the chosen procedure for the entry into force of the Kampala Amendments and its effect on the conditions for the exercise of jurisdiction.210 The controversy about the entry into force of any new provisions on the crime of aggression results from the “fundamental ambiguity”211 of Articles 5(2) and 121 of the ICC Statute.212 The required decision of States Parties to activate the Court’s jurisdiction over the crime of aggression,213 as placed on the agenda of the 16th session of the Assembly of States Parties in 2017, provided the occasion to address this presumably resolved, but still existing, or re-emerging, controversy.214

5.4 The New York City Resolution: Strict Consent-Based Regime with Opt-Out Option for States Parties? The exercise of jurisdiction by the International Criminal Court over the crime of aggression was, inter alia, conditioned upon a “decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute”.215 The decision to activate the Court’s jurisdiction was put on the agenda of the 16th session of the Assembly of States Parties in New York 209

See for the rejection of the US proposal which would have required, like the strict consent-based regime, the active consent of the national state of the accused, Schabas and Pecorella 2021a, para 10. 210 See for a contribution on this issue one year after the Kampala Conference van Schaack 2011b, p. 156. See also Kreß 2018, p. 8 who assumes that this legal controversy had surrounded the consentbased jurisdictional regime “ever since the adoption of the Kampala amendments”; McDougall 2021, p. 258 who considers this as a “constructive ambiguity” which became “increasingly clear in the lead-up to the 2017 activation decision of the ASP”. See also Trahan 2018, pp. 202 et seq. 211 Clark 2009. 212 Kreß and von Holtzendorff 2010, p. 1196. 213 See ICC Statute, Articles 15bis(3) and 15ter(3). 214 McDougall 2021, p. 258. 215 See ICC Statute, Article 15bis(3) and ter(3). The other condition of Article 15bis(2) and ter(2) of the ICC Statute, the ratification or acceptance of the amendments by 30 States Parties, was met

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City in December 2017. It was preceded by a year-long facilitation process, which ended with the publication of a report (Facilitation Report),216 and proved to be “far more than a ceremonial act”.217 The activation decision was perceived as an opportunity to clarify how the exercise of jurisdiction upon State referral or proprio motu investigation operates regarding States Parties that have not ratified the Kampala Amendments (non-ratifying States Parties). The “core issue to be discussed”218 in New York City was whether the Court has jurisdiction over a crime of aggression committed by nationals of a State Party which has not ratified219 the Kampala Amendments, who targeted a State Party which has ratified the Amendments. The jurisdictional regime over the crime of aggression following a UN Security Council referral, in contrast, was undisputed.220 Read in isolation, the ordinary meaning of Article 15bis(4) of the ICC Statute suggests that the Court has jurisdiction according to Article 12 of the ICC Statute, unless the alleged aggressor State has declared an opt out.221 The controversy arose regarding the combined reading of Article 15bis(4) and Article 121(5) of the ICC Statute. Given that Article 15bis(4) of the ICC Statute is an amendment to the Statute, it can only be applied if entered into force. Article 121(5) of the ICC Statute was chosen222 in Kampala as the procedure on the entry into force. This may come with the “baggage”223 of its second sentence imposing conditions for the exercise of jurisdiction diametrically opposed to Article 15bis(4) of the ICC Statute.224 If Article 121(5) was applicable in toto to the crime of aggression, what States thought to have rejected in Kampala,225 States Parties could exempt their nationals from jurisdiction by inaction, namely by not ratifying the Kampala Amendments. Actively declaring an opt-out would not be required. The answer to this question affects the subject of domestic implementation. If States can prevent judicial intervention of the International Criminal Court by staying inactive, these non-ratifying States do not need to actively implement the crime of aggression into domestic law to achieve the same result. Hence, the coercive potential in 2016. For the list of ratifications of Review Conference of the Rome Statute 2010b, see https:// treaties.un.org/. Accessed 15 September 2022. 216 At the 15th Session of the Assembly of States Parties in 2016, it was decided “to establish a facilitation, based in New York, open only to States Parties, to discuss activation of the Court’s jurisdiction over the crime of aggression”. See ICC Assembly of States Parties 2017b, para 4. 217 Kreß 2019, p. 52. See also Grover 2019, p. 161. 218 See ICC Assembly of States Parties 2017b, para 13. 219 The term “ratification” will be used in the following to capture other terminological alternatives. 220 Kreß 2018, p. 8; Trahan 2018, p. 203. 221 McDougall 2021, p. 303. 222 Review Conference of the Rome Statute 2010b, para 1. 223 Manson 2010, p. 426. 224 ICC Statute, Article 121(5) second sentence states 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.” 225 In Kampala, this discussion was framed under the heading of the “positive understanding” and the “negative understanding” of Article 121 of the ICC Statute. See Barriga 2012, p. 41.

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of complementarity to implement cannot fully unfold if Article 121(5) is applicable in toto.

5.4.1 Content of the Activation Resolution The adopted Activation Resolution, which was supposed to resolve the controversy, activates in operative paragraph 1 the Court’s jurisdiction over the crime of aggression.226 Operative paragraph 2 addresses the controversy by excluding, in case of a State referral or proprio motu investigations, crimes of aggression committed by the nationals or on the territory of non-ratifying States Parties. However, operative paragraph 3 leaves the door ajar for the International Criminal Court to decide on the matter.227 Operative paragraph 2 of the Resolution is clear in its language. It “confirms…that in the case of a State referral or proprio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments”. It reflects, almost verbatim, the second sentence of Article 121(5) of the ICC Statute and contains an exclusion of non-ratifying States Parties, similar to the one applicable to non-States Parties under Article 15bis(5) of the ICC Statute.228 It suggests—positively phrased—an opt-in system, or “strict” consent-based regime, for States Parties. Their nationals and territory do not fall within the reach of the International Criminal Court unless they take an active step by ratifying or accepting the Amendments. The term “confirm” suggests that the ICC Statute would have never allowed the establishment of a jurisdictional regime regarding the crime of aggression without respecting the second sentence of Article 121(5) of the ICC Statute. Operative paragraph 3229 reaffirms provisions on the judicial independence of the Court, namely Article 40(1) and Article 119(1) of the ICC Statute. It thereby expresses a preference for assigning to the judges of the International Criminal Court the task “to settle any dispute concerning the judicial functions of the Court”. This also includes any issue on the personal scope of jurisdiction, notably whether nationals of non-ratifying States Parties are covered.230 Due to its location right after the operative para on the exclusion of the territory and nationals of non-ratifying States 226

The activation took effect on 17 July 2018. See ICC Assembly of States Parties 2017c, operative para 1. 227 See ICC Assembly of States Parties 2017c, operative paras 2 and 3. In the same vein, Trahan 2018, p. 219. 228 See the language of Article 121(5) and Article 15bis(5) of the ICC Statute. 229 See ICC Assembly of States Parties 2017c, operative para 3: “Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119 of the Rome Statute in relation to the judicial independence of the judges of the Court”. 230 See Clark 2020, para 45. See also McDougall 2021, p. 327 whereby Article 19 of the ICC Statute confirms that determinations as to whether or not the Court has jurisdiction in any case is a “judicial function”. This mandate of the Court under Article 119(1) stands in contrast to Article 119(2) of

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Parties, operative paragraph 3 has been interpreted as giving a “glimmer of hope”.231 Whatever States agreed on in operative paragraph 2, it is up to the International Criminal Court to clarify the limits of its jurisdiction.232 Other scholars emphasize that it states “the obvious fact”,233 “a banality”.234 The Assembly of States Parties cannot replace the Court in deciding in complete independence the question of who is subject to its jurisdiction.235

5.4.2 Drafting History: No Compromise between Strict Consent-Based Regime and Opt-Out Regime Despite this outstanding task for the Court, the resolution reflects concessions made by the defenders of the opt-out regime of Article 15bis(4) of the ICC Statute. It does not constitute a compromise between the opposing views as to the combined reading of Article 15bis(4) and Article 121(5) of the ICC Statute. According to the proponents of the strict consent-based regime, which included France and the United Kingdom, the International Criminal Court cannot exercise jurisdiction over nationals of, or on the territory of, a State Party unless that State has ratified the Kampala Amendments.236 This basically corresponds to the US position toward the Court’s general jurisdiction at the Rome Conference.237 It also mirrors the stance Canada took at the Kampala Conference.238 It sets forth a double-ratification regime, a strict consent-based regime or equally called an opt-in system. Like the United States at the Rome Conference, France and the United Kingdom argued on the basis of the pacta tertiis principle, as enshrined in Article 34 of the VCLT.239 Its equivalent for treaty amendments, Article 40(4) of the VCLT, provides the ICC Statute which assigns to the Assembly of States Parties “any other dispute between two or more States Parties relating to the interpretation or application of this Statute”. 231 Clark 2020, para 45. See also McDougall 2018, p. 514. 232 Similarly, Akande and Tzanakopoulos 2018, p. 942. The last-minute attempts by some States to move the paragraph on the reaffirmation of judicial independence from the operative part to the preamble of the Resolution suggest that its language was “not necessarily so innocuous”, see Trahan 2018, p. 216. 233 Kreß 2019, p. 58. 234 Zimmermann 2018, p. 24. 235 In the same vein, Akande and Tzanakopoulos 2018, p. 942. 236 Paper submitted by Canada, Colombia, France, Japan, Norway and the United Kingdom (March 2017) in ICC Assembly of States Parties 2017b, p. 15. 237 See United States of America, Proposal Regarding Article 7, UN Doc. A/CONF. 183/C. 1/L.70, p. 247. 238 See Barriga and Kreß 2011h. 239 Or the “principle of relative effect of treaties”, see Paper submitted by Canada, Colombia, France, Japan, Norway and the United Kingdom (March 2017) in ICC Assembly of States Parties 2017b, p. 16, paras 5, 6, 13. See also van Schaack 2011b, p. 156. On the principle, see Chinkin 1993, pp. 25 et seq.

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that an “amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement”. However, most scholars rejected the pacta tertiis reasoning the United States raised against the general jurisdiction of the Court over nationals of non-States Parties at the Rome Conference.240 The exercise of territorial criminal jurisdiction over an individual does not create new rights or obligations for non-consenting States, such as an obligation to cooperate. The equally weak position of the proponents of the strict consent-based regime, however, was strengthened by the decision in Kampala that the amendments “shall enter into force in accordance with Article 121, para 5”.241 This would come with the “baggage” of the second sentence of Article 121(5) of the ICC Statute,242 which clearly provides for a strict consent-based regime for States Parties when it states: “In 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 proponents of the strict consentbased regime also argue with the deletion of Article 5(2) of the ICC Statute in Kampala. Due to its deletion, choosing Article 121(5) of the ICC Statute as an amendment procedure would be consistent with the subject-matter that falls into the scope of Article 121(5) of the ICC Statute.243 Article 121(5) of the ICC Statute requires “amendments to Articles 5, 6, 7 and 8”.244 The second sentence of Article 121(5) of the ICC Statute is not replicated in the resolution adopted in Kampala. However, divorcing it from the first sentence, which deals with the entry into force would constitute an amendment to the amendment provisions, which must first fulfill their requirements.245 States Parties would not need to opt out but could rely on their non-ratification of the Amendments to avoid the exercise of jurisdiction.246 In contrast, Liechtenstein,247 Switzerland and other defenders of the opt-out regime of Article 15bis(4) of the ICC Statute claimed that the International Criminal Court can exercise jurisdiction over crimes of aggression committed against a ratifying State Party, even if the State Party of the alleged aggressor has not ratified the 240

For a detailed discussion and rejection of the US reasoning, see Akande 2003, pp. 620 et seq.; Cormier 2020, pp. 14 et seq.; Kaul 2002, pp. 608 et seq.; Mégret 2001, pp. 251 et seq.; Scharf 2001, pp. 98 et seq. 241 See Review Conference of the Rome Statute 2010b, para 1. See Paper submitted by Canada, Colombia, France, Japan, Norway and the United Kingdom (March 2017) in ICC Assembly of States Parties 2017b, p. 16, para 12(a). 242 Manson 2010, p. 426. 243 See Paper submitted by Canada, Colombia, France, Japan, Norway and the United Kingdom (March 2017) in ICC Assembly of States Parties 2017b, p. 16, para 7. Akande and Tzanakopoulos 2018, p. 952; Murphy 2015, p. 541. For a skeptical view, see McDougall 2021, p. 30. 244 Ibid. 245 Akande and Tzanakopoulos 2018, p. 953; Manson 2010, pp. 425 et seq.; Schabas 2016, p. 356. 246 Paper submitted by Canada, Colombia, France, Japan, Norway and the United Kingdom (March 2017) in ICC Assembly of States Parties 2017b, pp. 16 et seq., para 12. See already Zimmermann 2016, p. 244. See also Murphy 2015, pp. 543 et seq. 247 Liechtenstein is one of the States which strongly supported the Aggression Amendments from the beginning. See, in detail, Alavi and Barnes 2020, pp. 8 et seq.

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Kampala Amendments.248 This could be prevented, however, by a previous opt-out declaration of the alleged aggressor State according to Article 15bis(4) of the ICC Statute.249 They argue with the genesis of the opt-out regime as a compromise between two opposing camps in Kampala250 and the sui generis amendment procedure allowed under Article 5(2) of the ICC Statute for the crime of aggression. They argue this does not lead to the application of Article 121(5) of the ICC Statute in toto.251 If Article 121(5) of the ICC Statute fully applied and added the opt-in requirement of its second sentence to the Kampala package, the opt-out system of Article 15bis(4) of the ICC Statute would lose its ability to build compromise.252 An opt-out system is the “only logical middle ground”253 between the opposing views. The first was those in Kampala who called for the unmodified application of the regime requiring the consent of either the territorial State or the national State (“Rome unchanged” approach, “camp protection”). The second group was those who preferred an opt-in system requiring the explicit consent of all States concerned, including the aggressor State (strict consent-based approach, “camp consent”).254 A combined reading of the second sentence of Article 121(5) and Article 15bis(4) of the ICC Statute would establish an absurd opt-in-opt-out system, allowing States Parties to shield their

248

See Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, pp. 20 et seq.; see also the concurring Paper submitted by Argentina, Botswana, Samoa, Slovenia and Switzerland (August 2017), in ICC Assembly of States Parties 2017b, pp. 24 et seq. On this reading see also Kreß 2019, p. 53 who describes it as the “more permissive position”; Trahan 2018, pp. 207 et seq. who describes it as “the Liechtenstein/Swiss/Majority Reading”. 249 See Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 22, para 17. 250 Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 20, paras 2 et seq.; Paper submitted by Argentina, Botswana, Samoa, Slovenia and Switzerland (August 2017), in ICC Assembly of States Parties 2017b, p. 26. See also Clark 2020, para 40; Kreß and von Holtzendorff 2010, p. 1213; McDougall 2021, pp. 313 et seq.; Trahan 2018, pp. 208 et seq. 251 Paper submitted by Argentina, Botswana, Samoa, Slovenia and Switzerland (August 2017), p. 27, para 15 and Paper submitted by Liechtenstein (April 2017), p. 20 para 4 and p 21 para 8, in ICC Assembly of States Parties 2017b. See also Barriga and Blokker 2017a, pp. 667 et seq., 673; Clark 2010, p. 704 fn. 55; Kreß and von Holtzendorff 2010, p. 1215; Wenaweser 2010, pp. 885 et seq. For a contrary view, see Akande and Tzanakopoulos 2018, pp. 950 et seq. who argue that such a sui generis regime would be neither in accordance with the text of the ICC Statute nor with basic principles of international law. 252 Kreß and Holtzendorff 2010, p. 1213. 253 Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 20, para 3. 254 Ibid., p. 20, paras 2 et seq. See also Barriga and Blokker 2017a, pp. 653, 671; Kreß and von Holtzendorff 2010, p. 1213.

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leaders twice.255 This was never requested by any delegation in Kampala.256 Moreover, insisting on the applicability of the second sentence of Article 121(5) would disregard the chronology of the drafting process in Kampala. The same arguments in favor of the applicability of the second sentence were raised in Kampala under the heading of the “negative understanding of Article 121(5)”.257 Respective understandings to the Kampala Amendments, however, were deleted when States agreed on the opt-out system.258 The second main argument raised by defenders of the opt-out regime is based on the chosen amendment procedure, the “legal basis” for the Kampala Amendments.259 They argue there is no conflict between Article 15bis(4) and Article 121(5) second sentence of the ICC Statute, if former Article 5(2) of the ICC Statute gives States wide powers for a sui generis amendment procedure for the crime of aggression. This allows one to only partially apply Article 121(5) of the ICC Statute.260 The partial application is claimed to be intended by the resolution adopted in Kampala. Contrary to the resolution on war crimes amendments,261 the resolution on the crime of aggression replicates only the language of the first sentence of Article 121(5) of the ICC Statute dealing with entry into force.262 It leaves out language from the second dealing with the exercise of jurisdiction. The power of arguments cannot explain why States adopted a resolution broadly reflecting an opt-in system and rejected a compromise resolution aiming at a softened

255

Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 22, para 15; paper submitted by Argentina, Botswana, Samoa, Slovenia and Switzerland (August 2017), in ICC Assembly of States Parties 2017b, p. 26. See also Barriga and Blokker 2017a, p. 657; Trahan 2018, p. 209. 256 Ibid. 257 For an explanation of the negative understanding, see Kreß and von Holtzendorff 2010, p. 1196. 258 Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 20; Clark 2020, para 41; McDougall 2021, pp. 311 et seq.; Reisinger Coracini 2010, p. 768, fn. 126; Wenaweser 2010, pp. 885 et seq. as well as fn. 10. 259 Paper submitted by Liechtenstein (April 2017), in ICC Assembly of States Parties 2017b, p. 20. 260 Paper submitted by Argentina, Botswana, Samoa, Slovenia and Switzerland (August 2017), p. 27, para 15 and Paper submitted by Liechtenstein (April 2017), p. 20 para 4 and p 21 para 8, in ICC Assembly of States Parties 2017b. See also Barriga and Blokker 2017a, pp. 667 et seq., 673; Clark 2010, p. 704 fn. 55; Kreß and von Holtzendorff 2010, p. 1215; McDougall 2021, pp. 313 et seq.; Wenaweser 2010, pp. 885 et seq. 261 See the explicit language of Review Conference of the Rome Statute 2010a, preambular para 2: “Noting article 121, paragraph 5, of the Statute which states that any amendment to Articles 5, 6, 7 and 8 of the Statute shall enter into force for those States Parties which have accepted the amendment … and that in respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party’s nationals or on its territory…”. For the same systematic interpretation, see also Schabas 2016, p. 356. See also Clark 2010, p. 709 fn. 70. 262 States decided that the amendments “shall enter into force in accordance with Article 121, paragraph 5” of the ICC Statute. See Review Conference of the Rome Statute 2010b, para 1. See also Kreß and von Holtzendorff 2010, p. 1214.

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opt-out system.263 This outcome, however, can be explained by the better negotiating position of France and the United Kingdom, as well as the expressed264 preference of States Parties for a consensual decision. In negotiation theory, relative negotiating power depends primarily upon how attractive the option of not reaching agreement is to each party.265 France and the United Kingdom left Kampala by questioning the compatibility of the independent266 exercise of jurisdiction of the Court under Article 15bis of the ICC Statute with the “primary responsibility” of the UN Security Council under the UN Charter.267 A failure to activate the Court’s jurisdiction in New York City would have provisionally ensured their preferred outcome that the UN Security Council has primary responsibility for determining acts of aggression.268 France and the United Kingdom had the better negotiating position compared to those fearing that a “postponement would have buried activation”.269 As they had nothing to lose, they could make use of their de facto veto right in consensual decisions270 and take the same extreme position on the first and last day271 of the Assembly of States Parties. This is ultimately captured in operative paragraph 2.

5.4.3 Legal Value of the Activation Resolution While the drafting history does not suggest an agreement in substance, the strict consent-based regime still forms the substantial underpinning of the adopted operative paragraph 2. It suggests to “confirm”272 the exclusion from jurisdiction of crimes 263

See also Zimmermann 2018, p. 24 who describes it as an “opting-out light” approach. See ICC Assembly of States Parties 2017a. It would have allowed States Parties to exempt themselves in an “as painless form imaginable” instead of lodging a formal opt-out declaration with the Registrar as required by Article 15bis(4) of the ICC Statute. 264 See ICC Assembly of States Parties 2017b, p. 2, para 4, p. 3, para 11. 265 Also called the “no deal option” or BATNA, which is the Best Alternative To a Negotiated Agreement and a common term in negotiation theory. See Fisher et al. 2012, pp. 99 et seq. 266 Article 15bis(9) indeed ensures that the International Criminal Court is not dependent upon the Security Council to prosecute the crime of aggression in case of a State referral or proprio motu investigation. See Zimmermann and Freiburg-Braun 2021a, para 53. 267 See their statements made right after the adoption of the Kampala Amendments, Statement by France, in Barriga and Kreß 2011e, p. 811; Statement by the United Kingdom in Barriga and Kreß 2011e, p. 813. 268 See also Trahan 2018, p. 242 whereby one suspects that the French and UK delegation might also have been fine with jurisdiction not activating. 269 See the account by the Swiss delegate Stürchler 2018, p. 3; Trahan 2018, p. 213. 270 See also Trahan 2018, p. 215. On the benefits and shortcomings of consensual decisions, see Sabel 2006, Chapter 16. 271 Paper submitted by Canada, Colombia, France, Japan, Norway and the United Kingdom (March 2017), in ICC Assembly of States Parties 2017b, p. 15. See Stürchler 2018, p. 3 whereby France and the UK on the last day of the conference circulated their own draft resolution reintroducing their initial position practically unchanged. In the same vein, Kreß 2018, p. 11. 272 See ICC Assembly of States Parties 2017c, operative para 2.

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of aggression committed by the nationals or on the territory of non-ratifying States Parties. Hence, the Activation Resolution is often considered to have rendered the opt-out regime of Article 15bis(4) of the ICC Statute almost meaningless.273 To test this assumption, it is necessary to assess the legal value of the Activation Resolution and its place within the aspects relevant for the interpretation of the Kampala Amendments and the ICC Statute. Discussions revolve around the question of whether operative paragraph 2 of the Activation Resolution amounts to a “subsequent agreement” or “subsequent practice” in the sense of Article 31(3)(a) or (b) of the VCLT.274 A “subsequent agreement” requires an agreement in substance between all parties, reached after the conclusion of a treaty, regarding the interpretation of the treaty or the application of its provisions.275 There are two concerns about characterizing the Activation Resolution as a subsequent agreement. First, it is questionable whether it is a subsequent agreement “regarding the interpretation” or rather “regarding the modification” of treaty provisions adopted in Kampala.276 In the latter case, there is a risk that the subsequent agreement circumvents the formal requirements of amendments. If States Parties intended to amend and modify the Kampala Amendments, the Activation Resolution would have failed to fulfill respective formal requirements of amendments.277 One could generously perceive the Activation Resolution as a regulation “regarding the interpretation” of the Kampala Amendments.278 This would emphasize that States Parties as the “masters of the treaty”279 know best what they agreed on in Kampala. Even if States Parties were allowed to subsequently agree on issues that almost amend the Kampala Amendments without fulfilling respective formal requirements, a second concern remains. Despite the adoption by consensus, it is questionable 273

Clark 2020, para 46 (“The 2017 resolution renders the opt-out something of a dead letter”); Stürchler 2018, p. 5 (“imply a revision of the plain reading of article 15bis”); Zimmermann 2018, p. 23(“completely set aside any effect Article 15bis(4) might still have had”; “diametrically undercut”); Zimmermann and Freiburg-Braun 2019, paras 359 et seq. (“effectively revered the opt-out option”; “de facto amendment of the Kampala amendment”). 274 For a discussion, see Akande and Tzanakopoulos 2018, pp. 943 et seq.; McDougall 2021, pp. 328 et seq. 275 For a definition of “subsequent agreement”, see Draft Conclusion 4 in International Law Commission 2018. See also Dörr and Schmalenbach 2012, Article 31 mn. 72 et seq. 276 For the same objection, see Trahan 2018, pp. 232 et seq. The dividing line between interpretation, on the one hand, and amendment or modification, on the other, is “difficult, if not impossible to fix”, see Commentary to Draft Conclusion 7, in International Law Commission 2018, para 27 with further references; Fitzmaurice and Merkouris 2020, p. 216. There is a tension between the recognition of States Parties as the “best interpreters of their own agreement”, and the respect for amendment procedures specifically established where States Parties are no longer satisfied by the status quo of the treaty, instead of generously allowing subsequent agreements that “inevitably destroy the balance of benefits laid down in the original treaty”. See also Klabbers 1994, p. 337; Murphy 2013, p. 89. 277 On the risk to circumvent formal amendment procedures, see Commentary to Draft Conclusion 7, in International Law Commission 2018, para 37. 278 This is possible under the assumption that States Parties were never able to adopt Article 15bis(4) of the ICC Statute, while leaving Article 121(5) second sentence of the ICC Statute unapplied. 279 See Arato 2013, p. 308; Gardiner 2020, p. 481; Villiger 2009, Article 31 mn. 16.

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whether States reached an “agreement in substance” or agreed to disagree.280 According to the International Law Commission, consensus shall not be equated with agreement in substance.281 Unlike unanimous decisions, which are adopted by vote by all States,282 consensual decisions are adopted without vote and without any State objecting.283 This leaves room for concealed disagreement.284 Several States made statements after the adoption of the Activation Resolution expressing disagreement with operative paragraph 2.285 Moreover, the Activation Resolution leaves ambiguities.286 Although operative paragraph 2 is diametrically opposed to the opt-out system of Article 15bis(4) of the ICC Statute, the resolution lacks a paragraph which changes the text or deletes Article 15bis(4) of the ICC Statute.287 Assimilating its text to Article 15bis(5) of the ICC Statute, however, would have reflected that nonratifying States Parties and non-States Parties are treated alike.288 Further ambiguities remain due to the Preamble of the resolution. It recalls Article 15bis(4) of the ICC Statute and notes “with appreciation” the Facilitation Report which summarizes the divergent views of States Parties. Additionally, operative paragraph 3 reaffirms the judicial independence of the Court. All these circumstances confirm that there was no agreement in substance despite the formal adoption by consensus.289 As a consequence, McDougall assumes that operative paragraph 2 was only agreed upon to secure the activation of the Court’s aggression jurisdiction.290 States agreed on the

280

For a similarly critical view, see Akande and Tzanakopoulos 2018, p. 946; Stürchler 2018, p. 3; McDougall 2021, pp. 329 et seq. See for the requirement of an agreement between all parties Villiger 2009, Article 31, para 15. 281 See Commentary to Draft Conclusion 11, in International Law Commission 2018, para 30. See also Boyle and Chinkin 2007, p. 157. 282 See Commentary to Draft Conclusion 11, in International Law Commission 2018, para 28; Wolfrum and Pichon 2010, para 18. 283 See Commentary to Draft Conclusion 11, in International Law Commission 2018, para 30; Wolfrum and Pichon 2010, para 4. 284 Boyle and Chinkin 2007, pp. 157 et seq. 285 See, e.g., the Statement by Switzerland: “Switzerland does not share the legal view expressed in this resolution regarding the Court’s jurisdiction over the crime of aggression. In our view, the Court does have jurisdiction over a crime of aggression committed by nationals or on the territory of non-ratifying States Parties.” See also Argentina, Belgium, Costa Rica, the Czech Republic, Finland, Liechtenstein and Cyprus, Mexico, Slovenia, Spain, Palestine. See their statements in ICC Assembly of States Parties 2017d, Annex VII. See also Akande and Tzanakopoulos 2018, p. 946; McDougall 2021, p. 327. 286 For an equally skeptical view, see McDougall 2021, pp. 325 et seq. 287 See, in contrast, the resolution which deletes Article 124, ICC Assembly of States Parties 2015, Annex. 288 They stipulate essentially the same thing. In case of a State referral or proprio motu investigation, the International Criminal Court shall not exercise jurisdiction regarding a crime of aggression when committed by a national or on the territory of a non-ratifying State Party (operative para 2) or a non-State Party (Article 15bis(5) of the ICC Statute). 289 Similarly, McDougall 2021, pp. 332 et seq. 290 Ibid., p. 333.

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activation but disagreed on the systematic interpretation of Article 15bis(4) with Article 121(5) of the ICC Statute.291 There are therefore better reasons to perceive the Activation Resolution not as a “subsequent agreement”, in the sense of Article 31(3)(a) of the VCLT. Instead, it can be perceived as a “supplementary means of interpretation” in the sense of Article 32 of the VCLT.292 This is relevant for the interpretation of Article 15bis(4) of the ICC Statute and improves the situation for the supporters of the strict consentbased view.293 Its interpretative force, however, is less than if it would be had it met the requirements of a “subsequent agreement”.294 As a “supplementary means of interpretation”, it is on par with the “preparatory work of the treaty” and its amendment. The preparatory work of the Kampala Amendments, however, tells the story of how the opt-out system came into being. Moreover, “supplementary means of interpretations” only become relevant if the application of the primary means of interpretation of Article 31 of the VCLT leaves the meaning of the treaty ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.295

5.4.4 Interpretation of Article 15bis(4) of the ICC Statute in Light of Its Amendment Procedure The Activation Resolution is thus only a single and supplementary factor that comes into play if the International Criminal Court ever deals with the controversy States tried to resolve in New York City. Where the Court must decide whether it has jurisdiction over a crime of aggression involving a non-ratifying State Party that has not opted out, it would resort to Article 15bis of the ICC Statute in the absence of a UN Security Council referral. As its title suggests, this is the central provision for the exercise of jurisdiction over the crime of aggression in case of a State referral or proprio motu investigation. According to the ordinary meaning of Article 15bis(4) of the ICC Statute,296 the Court can exercise jurisdiction over crimes of aggression committed by nationals or 291

Even if it is a subsequent agreement, it does not necessarily mean that it is the prevailing view on interpreting Article 15bis of the ICC Statute, but it would only be one of several factors to be taken into account when interpreting Article 15bis(4) of the ICC Statute. See VCLT, Article 31(3) whereby it “shall be taken into account, together with the context”. See also Akande and Tzanakopoulos 2018, p. 948; McDougall 2021, p. 334 ; Trahan 2018, pp. 231 et seq. 292 Similarly, Akande and Tzanakopoulos 2018, p. 948; McDougall 2021, p. 333. 293 See Akande and Tzanakopoulos 2018, p. 949 whereby it adds “considerable weight” to the strict consent-based view. 294 McDougall 2021, p. 333. 295 See VCLT, Article 32(a) and (b). 296 It does not require the State Party to be a “ratifying” State Party, but is unlimited in scope. The addition of “in accordance with Article 12” is read as providing that the general rules on the exercise of jurisdiction of Article 12 apply unless otherwise provided by Article 15bis(4) of the ICC Statute. Also assuming that the language of Article 15bis(4) of the ICC Statute is rather “straightforward”,

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on the territory of non-ratifying States Parties unless they opt out. This is supported by its interpretation in context, notably in comparison to Article 15bis(5),297 and by the object and purpose of Article 15bis(4) of creating an opt-out regime.298 However, Article 15bis(4) of the ICC Statute is an amendment to the ICC Statute and can only be applied once entered into force. As discussed in the negotiations leading to Kampala,299 none of the amendment procedures under the ICC Statute would have “escaped the charge of invention” to be applicable to the Kampala Amendments.300 Even Article 121(5) of the ICC Statute was not truly fitting. Its material scope is limited to “[a]ny amendment to articles 5, 6, 7 and 8 of the Statute”.301 The inclusion of any other new crime, such as terrorism, to the list of Article 5 of the ICC Statute would indeed trigger the application of Article 121(5) of the ICC Statute.302 The crime of aggression, in contrast, has been included since the Rome Conference, albeit undefined, in Article 5(1)(d) of the ICC Statute.303 The deletion of Article 5(2) of the ICC Statute containing the Rome mandate was “merely a technical clean-up”,304 rather than a functional amendment.305 When the Kampala Amendments entered into force, there was nothing to delete in substance due to the “completion” of Article 5(2) of the ICC Statute. The Kampala Amendments are thus not a clear “amendment to Article 5” as required by the material scope of Article 121(5) of the ICC Statute. Even if States expressed their intention in the Kampala Resolution that the amendments shall enter into force according to the first sentence of Article 121(5),306 this choice must still respect the terms of the ICC Statute. The Aggression Amendments must fall within the material scope of Article 121(5) of the ICC Statute. As this is not definitely the case, one may wonder whether it was legally possible to resort to a creative solution—to apply part of Article 121(5) of the ICC Statute and leave part see Clark 2020, para 40; Clark and Heinze 2021, para 24; Clark 2010, p. 704. See also Barriga and Blokker 2017a, p. 657; McDougall 2021, pp. 303 et seq. 297 It would make little sense if the drafters resorted to a different language for non-ratifying States Parties and non-States Parties to achieve the same result, namely their exclusion. Similarly, McDougall 2021, p. 311. 298 See Sect. 5.3.2.1. See also McDougall 2021, p. 307 et seq. 299 See for a summary of the discussions of the Special Working Group on the Crime of Aggression Barriga and Blokker 2017b, pp. 622 et seq. 300 See McDougall 2021, p. 314. 301 The insertion of the conditions for the exercise of jurisdiction in Article 15bis and ter did not amend Articles 5, 6, 7 or 8 either. For contributions that equally doubt the fit of Article 121(5) of the ICC Statute to the crime of aggression, see Barriga and Blokker 2017b, p. 632; Clark 2009, pp. 419 et seq.; Clark and Heinze 2021, para 24; Kreß and von Holtzendorff 2010, p. 1197; Reisinger Coracini 2008, p. 716. 302 For details, see Clark and Heinze 2021, para 13; Clark 2009, p. 416. 303 See Clark 2009, pp. 419 et seq.; Kreß and von Holtzendorff 2010, p. 1197; Wenaweser 2010, pp. 885 et seq. 304 Bertram-Nothnagel 2010, p. 7. 305 Clark 2009, pp. 415, 419; Clark 2020, para 37. 306 States decided that the amendments “shall enter into force in accordance with Article 121, paragraph 5” of the ICC Statute. See Review Conference of the Rome Statute 2010b, para 1.

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of it unapplied. This depends on the interpretation of the ambiguous Article 5(2) of the ICC Statute, whereby the “Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime”. A literal interpretation of Article 5(2) of the ICC Statute does not help. The endless debates in negotiations already prior to Kampala show that the language of Article 5(2) of the ICC Statute is too ambiguous to determine whether States have flexibility and which entry-into-force provision applies to the amendments on aggression.307 An interpretation of the terms of Article 5(2) of the ICC Statute “in their context”308 vis-à-vis other provisions of the ICC Statute does not help either.309 A systematic interpretation of the “conditions under which the Court shall exercise jurisdiction” of Article 5(2) with Article 121(5) of the ICC Statute might suggest that the conditions are those stipulated in the latter’s second sentence.310 This would lead to a double-ratification regime based on nationality and territoriality. However, a systematic interpretation with Article 12 of the ICC Statute could bring the crime of aggression closer to the ordinary single-ratification regime of Article 12(2) of the ICC Statute. It may suggest that States Parties have already accepted in Article 12(1) of the ICC Statute the jurisdiction “with respect to the crimes referred to in Article 5” and only left the “conditions of the exercise of jurisdiction” undecided. The listing in Article 5(1)(d) of the ICC Statute since the Rome Conference also emphasizes the special status of the crime of aggression, as being “half in and half out of the Statute”.311 This status would be ignored by applying the same amendment procedure as used for any newly added crime.312 An interpretation of Article 5(2) of the ICC Statute “in light of its object and purpose” is not conclusive either. The object and purpose must primarily be established by reading the text of the ICC Statute and “not so much by recurring to external 307

The use of “adopted in according to Articles 121 and 123” and the lack of the use of “enter into force” may point to the application of Article 121(3) and against Article 121(4) or (5) of the ICC Statute, but the irrelevance of a ratification would be “an astonishing consequence, given the political importance of the matter”. See Kreß and Holtzendorff 2010, pp. 1196 et seq. See also Clark and Heinze 2021, para 23. 308 See VCLT, Article 31(1). On the contextual interpretation, see Article 31 in Dörr and Schmalenbach 2012, paras 44 et seq. 309 The use of “adopted in according to Articles 121 and 123” and the lack of the use of “enter into force” may point to the application of Article 121(3) and militate against the application of Article 121(4) or (5) of the ICC Statute. The irrelevance of ratification of the Aggression Amendments, however, would be “an astonishing consequence, given the political importance of the matter”. See Kreß and von Holtzendorff 2010, pp. 1196 et seq. Moreover, Article 5(2) uses the term “provision” instead of “amendment”, which may also raise doubt as to the application of Article 121, see Clark and Heinze 2021, para 23. 310 On the contextual interpretation and the possibility that other provisions of the treaty have a “necessary consequence or implication”, see Dörr and Schmalenbach 2012, Article 31, para 49. 311 Clark and Heinze 2021, para 23. 312 Similarly, Reisinger Coracini 2008, p. 715. Newly added crimes need to respect Article 121(5) of the ICC Statute.

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factors” such as its preparatory work.313 The vague language in Article 5(2) of the ICC Statute might have been used to postpone the complex decision on the conditions for the exercise of jurisdiction over the crime of aggression. It might have had the purpose of leaving States something to decide at the Review Conference by conferring on them wide powers, instead of limiting them in the last hours of the Rome Conference to a specific jurisdictional regime. Alternatively, Article 5(2) of the ICC Statute could have had the sole purpose of reminding States of the outstanding task without giving them more flexibility than provided by Articles 121 and 123 of the ICC Statute. Given that the literal, systematic and teleological interpretation of Article 5(2) of the ICC Statute leaves its meaning ambiguous, recourse may be had to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”.314 The preparatory work of the Rome Conference does not give a clear answer as to the systematic interpretation of Article 5(2) and 121 of the ICC Statute.315 This is likely because these Articles were prepared by different working groups.316 Rome does not give a conclusive answer as to the teleological interpretation either. The listing of the crime of aggression in Article 5(1)(d) of the ICC Statute, in addition to the mandate for the Review Conference in Article 5(2), stems from a proposal made by the Non-Aligned Movement at the Rome Conference.317 The purpose of the listing in Article 5(1) of the ICC Statute, which was lacking in the previous bureau proposal, was for the Court to have a “unified legal regime”, “to all and not only to those who agree specifically to the provision on aggression”.318 It should ensure the better status of the crime of aggression in comparison to future crimes which were not yet listed. Alternatively, the compromise reached in Article 5 of the ICC Statute might have meant that “those determined to get aggression ‘in’ [at the Rome Conference] might have [had] to concede that they could not make it applicable to all…take what they can get and wait out the ratification process State by State”.319

313

See Article 31, in Dörr and Schmalenbach 2012, para 59. VCLT, Article 32. 315 See Clark 2009, pp. 414 et seq.; Clark 2020, paras 27 et seq. There were four different interpretations discussed, namely the adoption model, the Article 121(5)-model with a negative understanding, the Article 121(5)-model with a positive understanding and the Article 121(4)-model. See, in detail, also Akande and Tzanakopoulos 2018, pp. 950 et seq.; Barriga and Blokker 2017b, pp. 622 et seq.; Clark and Heinze 2021, para 23; Kreß and von Holtzendorff 2010, pp. 1196 et seq.; McDougall 2021, pp. 292 et seq. 316 Kreß and von Holtzendorff 2010, pp. 1198 et seq. On the preparatory work, see Clark 2009, pp. 421 et seq. 317 On this last-minute compromise, see Kreß 2018, p. 2; Zimmermann 2016, para 39. 318 Clark 2009, p. 425. 319 Ibid. 314

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The resolutions adopted in Kampala and New York City,320 as well as their drafting histories, are other “supplementary means” for interpreting Article 5(2) of the ICC Statute.321 The Kampala resolution and its preparatory work support the idea of a sui generis amendment procedure.322 In contrast, operative paragraph 2 of the Activation Resolution suggests the treatment of the crime of aggression like any new crime added to the ICC Statute, meaning that Article 121(5) applies in toto. As operative paragraph 3 of the Activation Resolution anticipated, and as it is shown above, there is something left to decide by the judges of the International Criminal Court. The literal, systematic and teleological interpretation of Article 15bis(4) of the ICC Statute points into the direction of a soft consent-based regime. However, this depends on whether Article 5(2) of the ICC Statute can be interpreted as allowing such a creative solution which leaves the second sentence of Article 121(5) of the ICC Statute inapplicable.323 Operative paragraph 2 of the Activation Resolution rejects this assumption, but its legal value is not necessarily superior to the Kampala Resolution and the preparatory work of Article 15bis(4) of the ICC Statute. According to Article 5(2) of the ICC Statute, Kampala should decide what States were unable to decide in the last hours of the Rome Conference. This was namely “the conditions under which the Court shall exercise jurisdiction” with respect to the crime of aggression. The Kampala Resolution and the preparatory work strongly suggest the view that Article 5(2) of the ICC Statute did not forestall this decision but allowed a sui generis solution to decide on the conditions for the exercise of jurisdiction. Due to the ambiguities of the Activation Resolution, there is room to believe that there was no agreement between States Parties to replace this understanding prevalent in Kampala by operative paragraph 2. This view is supported by the unchanged text of Article 15bis(4) of the ICC Statute, the genesis of operative paragraph 2, and the statements made after its adoption. Some scholars indeed argue that a reading of Article 15bis(4) of the ICC Statute in the sense of a simple-ratification regime with the ability for States Parties to opt out is not precluded after New York City.324

320

For a characterization of the Activation Resolution, adopted in New York City, as a supplementary means of interpretation in the sense of Article 32, see Akande and Tzanakopoulos 2018, p. 948; McDougall 2021, p. 333. 321 Although they are not stricto sensu preparatory work of Article 5(2) of the ICC Statute, “anything that looks helpful” can fall into this category of “supplementary means” under Article 32 of the VCLT according to Gardiner 2015, p. 112. See also International Law Commission 2018. 322 See Sect. 5.3.2.1 above. 323 Others may approach the same legal issue on the basis of an interpretation of Article 121(5) of the ICC Statute, see Clark and Heinze 2021, para 25. 324 Clark and Heinze 2021, para 26; McDougall 2021, p. 335; Trahan 2018, p. 232.

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5.4.5 Critical Account of the Jurisdictional Reach Under the Strict Consent-Based Regime with Additional Opt-Out Option for States Parties In contrast, if the judges of the International Criminal Court decide that the jurisdictional regime with respect to non-ratifying States Parties follows what has been described in operative paragraph 2 of the Activation Resolution, they “confirm” a strict consent-based one. This requires the ratification of the Kampala Amendments by the national and the territorial State(s). As the Activation Resolution did not amend the text of Article 15bis(4) of the ICC Statute, States Parties would additionally have the right to opt out. Thus, the New York City resolution allegedly resulted in—or confirmed325 —a soft consent-based regime, with an opt-out option for States Parties. This further shortens the “sword” of the ordinary jurisdictional regime and increases the dependency from UN Security Council referrals.

5.4.5.1

Weakness: Undermining the Assets of the Rome Compromise and the Kampala Compromise

The weakness of such a strict consent-based regime, with additional opt-out option for States Parties, can be seen in its operationalization of consent. It further undermines one of the main assets of the Rome compromise, namely the establishment of territorial jurisdiction. It also undermines one of the pleasant surprises of the Kampala compromise, namely that States overcame the claimed monopoly of the UN Security Council by establishing a soft consent-based regime. The unmodified jurisdictional regime of Rome would have allowed the exercise of territorial jurisdiction over crimes of aggression committed on the territory of a ratifying State Party irrespective of any consent by the other State(s) concerned. The additional requirement of ratification by the national State of the accused is not a novel claim from New York City. It was already made in Rome by the United States, but was not acceptable to the overwhelming majority of delegates at the Rome Conference. It was perceived as “causing a probable paralysis” of the International Criminal Court326 and conflicting with territorial jurisdiction.327 There is not so much left of the territorial jurisdiction of the Court due to New York City’s alleged exclusion of non-ratifying States Parties, Kampala’s exclusion of non-States Parties and the optout possibility for States Parties. The additional ability to opt-out leads to a stricter regime than once proposed by the United States at the Rome Conference.328 Such a consensual jurisdictional regime rather fulfills the expectations of international 325

If Article 5(2) of the ICC Statute is read as having always precluded a different default jurisdictional regime for the crime of aggression than the one enshrined in Article 121(5) of the ICC Statute. 326 Schabas and Pecorella 2021a, para 10. 327 Ibid., para 16. 328 See Sect. 5.2.2 above.

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adjudication where consent of all Parties concerned is a structural element. It fails to fulfill the standard of criminal adjudication where territorial jurisdiction is the basic principle. Perceiving the chosen operationalization of consent as a limitation of the territorial jurisdiction of the Court can also explain why the incentive for States to ratify is considerably low. Under the Rome compromise, the ratification of the ICC Statute promises protection for the territory of the ratifying State against crimes committed by nationals of States Parties and non-States Parties alike. After Kampala, ratification of the Amendments promised protection from crimes of aggression committed by the nationals of the other 122 States Parties of the ICC Statute. After New York City, however, ratification of the Kampala Amendments seems to protect territory only from crimes of aggression committed by the nationals of the other 43 ratifying States Parties that have not opted out.329 This operationalization of consent does not necessarily encourage States to broaden the Court’s reach by ratifying the Kampala Amendments and thus prolongs the Court’s dependency from UN Security Council referrals. New York City also undermined what scholars330 described as one of the main achievements of the Kampala compromise, namely that States overcame the claimed monopoly of the UN Security Council by establishing a soft consent-based regime instead of a strict consent-based regime. From the perspective of behavioral economics,331 the soft consent-based regime had the benefit of keeping most States Parties within the jurisdictional reach of the Court, due to their status quo bias. Only States with strong preferences would have made the active step of opting out. A strict consent-based regime, in contrast, reverses the default rule. Nationals and territory of States Parties are excluded unless States overcome their inertia and have strong preferences for ratifying the Amendments. The Kampala Amendments have been ratified by 44 States Parties.332 Under the strict consent-based regime, the others are by default out of reach of the Court. Under the soft consent-based regime, in contrast, they would be by default “in” the jurisdictional reach of the Court if they aggress one of the 44 ratifying States Parties.

5.4.5.2

The Remaining Strength: The Independence of the Court from the UN Security Council

On paper, the remaining strength of the jurisdictional regime over the crime of aggression is that it keeps an alternative to the exercise of jurisdiction upon UN Security Council referral. Even if this alternative avenue is fairly limited after New York City, 329

As of December 2022, 44 States Parties have ratified the Kampala Amendments. For the current state of ratifications, see https://treaties.un.org. Accessed 15 December 2022. 330 Kreß and von Holtzendorff 2010, p. 1216. 331 See Sect. 5.3.2.2 above. 332 As of December 2022. For the current state of ratifications, see https://treaties.un.org/. Accessed 15 December 2022.

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its existence still ensures the judicial independence of the Court from the power dynamics within the UN Security Council. States can increase the relevance of this alternative avenue by ratifying the Kampala Amendments. They should not forfeit the chance to empower an independent aggression court. This is especially important because permanent members of the UN Security Council,333 and even the International Law Commission,334 previously questioned whether an international criminal court could exercise jurisdiction irrespective of a prior determination of an act of aggression by the UN Security Council.

5.5 Conclusion This chapter explored the restricted jurisdictional regime of the International Criminal Court with respect to the crime of aggression. Compared to the jurisdictional regime upon State referral or proprio motu investigations applicable to other ICC Statute crimes, the regime is more restricted due to a different operationalization of consent. The regime applicable to genocide, crimes against humanity and war crimes can be appraised for its principled defense of territorial jurisdiction in Article 12(2)(a) of the ICC Statute. For the exercise of jurisdiction over the crime of aggression, in contrast, the acceptance of the Court’s jurisdiction by one of the territorial States does not suffice. This is illustrated by the inability of the International Criminal Court to exercise jurisdiction over the crime of aggression allegedly committed by Russian nationals despite the ad hoc acceptance by Ukraine.335 The regime applicable to the crime of aggression categorically excludes the territory and the nationals of non-States Parties,336 acts of aggression by a State Party that has previously opted out,337 and (arguably) the territory and the nationals of States Parties that have not ratified the Kampala Amendments.338 The uncertainty about the situation of non-ratifying States Parties stems from the ambiguous

333

Namely, the permanent members of the Security Council. See the statement by France after the adoption of the Kampala Amendment: “In article 15 bis, paragraph 8, the text restricts the role of the United Nations Security Council and contravenes the Charter of the United Nations under the terms of which the Security Council alone shall determine the existence of an act of aggression.” 334 See Article 23(2) of the 1994 Draft Statute of the International Law Commission: “A complaint of or directly related to an act of aggression may not be brought under this Statute unless the Security Council has first determined that a State has committed the act of aggression which is the subject of the complaint.” 335 See ICC Chief Prosecutor Karim Khan, Statement, 28 February 2022: https://www.icc-cpi.int/ news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-ope ning. Accessed 15 September 2022. 336 See ICC Statute, Article 15bis(5). 337 See ICC Statute, Article 15bis(4). 338 Provided Article 15bis(4) of the ICC Statute cannot enter into force on the basis of Article 5(2) and of the first sentence of Article 121(5) without triggering the latter’s second sentence.

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interplay between first, Article 5(2), setting out the mandate for the Kampala Conference, secondly, Article 121(5), stipulating the amendment procedure for newly added crimes, and finally, Article 15bis(4) of the ICC Statute, aiming to install an opt-out system for the Court’s aggression jurisdiction. If the International Criminal Court decides that States Parties were always limited by Article 5(2) to the conditions for the exercise of jurisdiction provided by the second sentence of Article 121(5) of the ICC Statute, the Court cannot exercise jurisdiction over crimes of aggression committed on the territory or by the nationals of non-ratifying States Parties. Consequently, the exercise of jurisdiction over the crime of aggression would depend upon the ratification of the Kampala Amendments by the national State and the territorial State(s). The Activation Resolution of New York City would have “confirmed” in operative paragraph 2 a strict consent-based regime for the crime of aggression which was “unacceptable” to the overwhelming majority of delegates at the Rome Conference for the other core crimes. In Rome, requiring the consent of the national State of the accused was perceived as “causing a probable paralysis” of the International Criminal Court.339 Such a strict consent-based regime as that allegedly “confirmed” in New York City, combined with the additional opt-out possibility for States Parties under the still existing Article 15bis(4) of the ICC Statute, leaves little of the strength of territorial jurisdiction. Due to this operationalization of consent, the Court’s jurisdictional regime over the crime of aggression would be more reminiscent of international adjudication than of criminal adjudication. However, the International Criminal Court is limited to the establishment of individual criminal responsibility. The restrictions installed in Kampala, and those allegedly confirmed in New York City for the crime of aggression, diminish the relevance of the jurisdictional regime following State referral and proprio motu investigation. They increased the difference in strength to, and the dependency upon, the jurisdictional regime following a UN Security Council referral. Further ratifications of the Kampala Amendments can elongate the “short sword” of the ordinary jurisdictional regime upon State referral and proprio motu investigations. They can increase the gap-filling potential of the Court. These ratifications, however, may only reluctantly occur due to the presumably lower incentive to ratify. One of the benefits of the “Rome compromise” is territorial jurisdiction which promises protection by the supranational deterrent of the International Criminal Court for the territory of every State that ratifies the ICC Statute. This “sanctuarizing” effect of a ratification cannot unfold if the protection of territory from crimes of aggression is further conditioned upon action of the aggressor State, namely ratification of the Kampala Amendments. Under the reading of operative paragraph 2 of the Activation Resolution, ratification of the Kampala Amendments only promises protection against crimes of aggression that originate from acts of aggression by ratifying States Parties. It is likely that the dependency upon UN Security Council referrals will last longer. The restricted jurisdictional regime of the International Criminal Court over the crime of aggression may not only hamper the ratification process. It can also influence 339

Schabas and Pecorella 2021a, para 10.

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the domestic legislative implementation of the crime. First, the restrictions reduce the coercive potential of the principle of complementarity. The coercive potential depends on the legal and factual reach of the International Criminal Court.340 States do not need to become active and enact implementing legislation to avoid future judicial intervention. If crimes of aggression are out of reach for the International Criminal Court, they can remain inactive. Due to the restrictions installed for the crime of aggression, judicial intervention by the International Criminal Court seems to depend upon prior ratification of the Kampala Amendments by the relevant State. Non-States Parties of the ICC Statute, and even non-ratifying States Parties of the Kampala Amendments, seem to be excluded. Hence, judicial intervention can be prevented by inaction. Only a functioning UN Security Council could increase the coercive potential of complementarity and circumvent the restrictions by referring situations to the International Criminal Court. This is fundamentally different from the regime applicable to other ICC Statute crimes. States, even non-States Parties, must become active to prevent the exercise of complementary jurisdiction by the International Criminal Court over genocide, crimes against humanity and war crimes committed by their nationals on the territory of a State Party.341 Secondly, the restricted jurisdictional regime of the International Criminal Court also increases the need for implementing legislation to avoid impunity. Domestic implementation is necessary, if States want to avoid impunity for the commission of the crime of aggression in their territory and beyond. If the International Criminal Court is unable to exercise jurisdiction, States cannot rely on the International Criminal Court as a gap-filler. As Chap. 7 shows, States are not prevented under international law from establishing territorial jurisdiction over the crime of aggression on the domestic level. Legislative implementation of the crime of aggression can compensate at the domestic level for what a ratification of the Kampala Amendments cannot achieve under the “confirmed” strict consent-based regime at the international level. It can establish territorial jurisdiction over the crime of aggression irrespective of the consent of the national State of the accused. The restrictions under the ICC Statute regime over the crime of aggression were ultimately not necessary from a legal perspective. This is also suggested by recent discussions about establishing a special international tribunal to prosecute the crime of aggression allegedly committed against Ukraine in 2022. These proposals seem to be based on the conviction that Ukraine has territorial jurisdiction, which can be delegated to an international tribunal.342 The proposals do not seem to question that the to-be-established international aggression tribunal for Ukraine could exercise criminal jurisdiction without the consent of Russia, the national State of the defendants.

340

See, in detail, Chap. 2., Sect. 2.3.3.1. For the question of whether States can rely on ordinary criminal offenses to prosecute other ICC Statute crimes and render cases inadmissible under Article 17 of the ICC Statute, see Stahn 2012. 342 See, e.g., McDougall 2022. To bolster its legitimacy, an endorsement of the UN General Assembly is debated. 341

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Chapter 6

Options for Incorporating the Definition of the Crime of Aggression into Domestic Law

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 The Principle of Complementarity and the Decisions of Whether and How to Implement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.2 Implementation as an Act to Integrate an International Crime Definition into the Domestic Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.3 The Advantages of Complete Implementation and Modified Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.4 The Different Understandings of the Principle of Legality as a Source of Tension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Implementation by Copying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Implementation by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Different Types of References as Illustrated by the Samoan Implementation . . . . . 6.3.2 Tensions with the Principle of Legality? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Modified Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 Over-Inclusive and Under-Inclusive Implementations . . . . . . . . . . . . . . . . . . . . . . 6.4.2 Modifications with Respect to the Underlying Act of Aggression . . . . . . . . . . . . 6.4.3 Modifications with Respect to the “Manifest” Threshold . . . . . . . . . . . . . . . . . . . 6.4.4 Modifications with Respect to the Leadership Clause . . . . . . . . . . . . . . . . . . . . . . 6.4.5 Modification with Respect to the Individual Conduct . . . . . . . . . . . . . . . . . . . . . . 6.4.6 Conclusion to Modified Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

264 265 266 268 270 273 274 274 276 280 281 281 283 288 299 304 309 311 313

Abstract The operationalization of domestic implementation gives rise to the question of how to incorporate the definitions of the ICC Statute crimes into domestic law. This chapter discusses the three major options: implementation by copying the definition, implementation by reference to Article 8bis of the ICC Statute (or to other sources of international law) and implementation of a modified definition. It clarifies that implementation by copying Article 8bis of the ICC Statute does not suffice to make domestic law consistent with the ICC Statute definition. It additionally requires the implementation of the absolute leadership clause of Article 25(3bis) of the ICC Statute. Despite the commonly assumed tension between the principle of legality and the technique of using references, the chapter argues that an implementation by using

© T.M.C. ASSER PRESS and the author 2023 A. Hartig, Making Aggression a Crime Under Domestic Law, International Criminal Justice Series 32, https://doi.org/10.1007/978-94-6265-591-1_6

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a static blanket reference to Article 8bis of the ICC Statute is less problematic. It does not impair the understanding of a crime that is committed by persons who are typically legally trained or legally advised. It also presents the modified implementations since 2010. They suggest that States try to closely mirror the ICC Statute definition, even if the disciplinary effect of complementarity is reduced regarding the crime of aggression. By mostly leaving the previously criticized “manifest” threshold without modification, the existing implementations seem to confirm that States did their best to describe with sufficient clarity a crime which is based on violations of a field of law that is known for its ambiguities. Keywords Principle of complementarity · Principle of legality · Implementation by copying · Absolute leadership crime · Implementation by reference · Blanket references · Over-inclusive and under-inclusive implementation · Criticism raised against Article 8bis of the ICC Statute · “Manifest” threshold · Individual conduct

6.1 Introduction This chapter discusses the three major options for implementing the crime of aggression, as defined in Article 8bis of the ICC Statute,1 into domestic law. These options are implementation by copying, implementation by reference, and modified implementation.2 The former two fall into the broader category of complete implementation. They aim to make domestic law completely conform to the substantive law of the ICC Statute, either by copying the definition of Article 8bis of the ICC Statute (implementation by copying), or by creating a provision that contains a sanction but refers to Article 8bis of the ICC Statute for the definition (implementation by reference).3 Modified implementation, however, is the most popular option. Although it comprises a theoretically infinite number of possibilities, the chapter is limited to the discussion of existing implementations. This author has identified 16 States that have implemented the crime of aggression into domestic law since the Kampala Conference in 2010.4 1

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 2 For the different options for implementation, see Werle and Jeßberger 2020, paras 467 et seq. The option of direct applicability of international criminal law and the non-implementation by relying on existing ordinary criminal offenses was discussed in Chap. 4, Sect. 4.1.4. 3 See Werle and Jeßberger 2020, paras 467 et seq. 4 Among them are, as of September 2022: Afghanistan, Austria, Croatia, Cyprus, the Czech Republic, Ecuador, Estonia, Finland, Georgia, Germany, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. The number may vary due to continuous developments. The Dominican Republic, for example, inserted the crime of aggression into Article 378 of the Criminal Code. The Criminal Code of 2014, however, was declared unconstitutional in 2015. See Dominican Constitutional Court, Decision, 17 December 2015. See also Dominican Republic 2016, p. 3. Prior to the return to power of the Taliban in 2021, Afghanistan adopted a new criminal code which entered into force in 2018 and included the crime of aggression. The Taliban no longer applies the law.

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6.1.1 The Principle of Complementarity and the Decisions of Whether and How to Implement Formally, these 16 States Parties were not under an obligation to implement the crimes of the ICC Statute.5 Hence, States do not violate any ICC Statute obligation by failing to implement the crime of aggression into domestic law.6 Nonetheless, there is a certain incentive for risk-averse and impunity-averse States to opt for implementation. As discussed in Chap. 4, non-implementation, and the consequential reliance on existing types of criminal offenses, is a “zero-solution”7 in the truest sense of the word. It leaves States unable to address the core wrong of the crime of aggression,8 which creates the risk of judicial intervention by the International Criminal Court.9 As explained in Chap. 2, this is why complementarity has a coercive potential.10 It induces States to proactively incorporate the ICC Statute crimes into domestic law. This ensures that domestic courts can prosecute these crimes and prevent judicial interventions by the International Criminal Court. Regarding the crime of aggression, the coercive potential is reduced due to the restricted jurisdictional regime of the International Criminal Court.11 There is still the risk that the UN Security Council refers a situation, or that State ratifications suffice in a given situation for judicial intervention by the International Criminal Court.12 This could be a problem if the State in question has a strong interest to prosecute the aggression case.13 Domestic implementation is thus a means for risk-averse States to avoid any judicial intervention, even in these rare situations. For the more likely situations, where the International Criminal Court lacks jurisdiction, domestic implementation is equally attractive. It ensures that impunity-averse States can hold aggressors accountable in domestic proceedings. The principle of complementarity does not only influence the decision of whether States implement the crime of aggression but also how they design the respective domestic definition. In principle, complementarity does not preclude a certain amount 5

See, in general, for implementations of the ICC Statute crimes, Werle 2001, p. 886; Werle and Jeßberger 2020, para 464. 6 Werle and Jeßberger 2020, para 464. 7 Ibid., para 471. 8 At least if they do not have the “crime of aggressive war”, modelled on the Nuremberg and Tokyo precedents under domestic law. See Chap. 4, Sect. 4.9. 9 See Chap. 4, Sect. 4.9. 10 See Chap. 2, Sect. 2.3.3. 11 See Chap. 2, Sect. 2.3.3.1 and Chap. 5. The coercive potential depends upon the Court’s jurisdictional reach and thus upon further ratifications of the Kampala Amendments, a functioning UN Security Council and the perceived legal value of the resolution adopted by the Assembly of States Parties in 2017. 12 The risk is higher for those States which are not permanent members of the UN Security Council and for those States that have already ratified the Kampala Amendments. 13 They may have a sovereignty-driven interest to prosecute their former State leaders after a regime change.

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of deviation from Article 8bis of the ICC Statute.14 To recall, it suffices that States exercise jurisdiction over “substantially the same conduct” to render cases before the International Criminal Court inadmissible.15 This allows some flexibility.16 Nonetheless, the more States leave gaps to the definition of the ICC Statute, the more they risk punishment under domestic law becoming impossible or inadequate, which may invite the International Criminal Court to take over the case.17 This is why the urge to closely mirror the definition of Article 8bis of the ICC Statute may be explained by the principle of complementarity.

6.1.2 Implementation as an Act to Integrate an International Crime Definition into the Domestic Legal Order Implementation, understood as a process to integrate the international definition of the crime into the domestic legal order, may call for modifications to reflect the legislative preferences and legal requirements of that order.18 As Werle and Jeßberger note, the “price to be paid for this great achievement of agreeing on universally acceptable rules of international criminal justice is that several of these rules reflect the need for political compromise rather than the traditional standards of criminal law.”19 International criminal legislation, such as the definition of the crime of aggression under the ICC Statute, differs from typical domestic criminal legislation.20 The 33lined Article 8bis of the ICC Statute, for example, copies long-winded language from existing international law documents, such as the UN General Assembly Resolution 3314,21 the UN Charter22 and the IMT Charter.23 It also contains explicit references to 14

For this comment on the implementation of ICC Statute crimes in general, see Werle and Jeßberger 2020, para 464. See also Ambos 2018b, §6 mn. 37; Satzger 2012, §15 mn. 29 et seq. 15 On the interpretation, see Rastan 2017. 16 Werle and Jeßberger 2020, para 464. 17 Satzger 2012, §15 mn. 29 et seq. 18 Similarly, Werle and Jeßberger 2002b, p. 209. 19 Ibid. See also Glaser 1964, pp. 519 et seq., who therefore concludes that international criminal law is not a “Tatbestandsrecht”. 20 See in comparison the unprecedented length of the definition of war crimes in Article 8, the references to the Geneva Conventions or “laws and customs applicable in international armed conflicts” in Article 8(2)(a) and (b) and the vague terms like “inhumane act” in the definition of crimes against humanity in Article 7(1)(k) of the ICC Statute. 21 UN General Assembly 1974. 22 Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter). 23 Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter).

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the first two. To their defense, the use of language from and references to international law documents integrates the crime in the broader framework of international law.24 A definition based on these documents also facilitated negotiations among States.25 When implementing this definition into domestic law, however, States may try to put more emphasis on traditional standards of criminal law. One of these standards, the principle of legality, potentially requires modifications to ensure that the law is sufficiently clear to be understood by the subject of the norm.26 Modification may also follow from domestic legislative preferences for conciseness,27 preferences for structuring the norm,28 and consistency to existing norms under domestic law.29 The urge to modify the definition of the ICC Statute, however, is balanced by the urge to closely mirror it. This is not only for reasons of complementarity, but also to be consistent with what States accepted by consensus at the Kampala Conference in 2010. Implementation thus requires a balancing act between reflecting the substance of the Kampala definition and meeting the legal requirements and legislative preferences of domestic law.30 As the last crime to be defined under the ICC Statute in 2010, the crime of aggression is generally the last to be implemented into domestic law. The readiness of implementing States to re-arrange or condense the definition of the crime, or use references, will likely correspond to existing domestic provisions on genocide, crimes against humanity and war crimes.31 This is, for example, suggested by the domestic implementations of Samoa and Germany. Samoa followed the path previously taken by using the reference model. Germany kept the tradition32 of adopting a modified 24

Similarly, Glaser 1964, p. 519. Ambos 2010, p. 487; Heinsch 2010, p. 726; McDougall 2021, p. 212. See also Kreß 2009, p. 1136. 26 See Sect. 6.1.4. below. 27 See, e.g., the justification of Germany to delete the list of the acts of aggression, inter alia, by its interest in concise legislation in Deutscher Bundestag 2016, p. 19. See also Jeßberger 2018, p. 189. 28 See, e.g., Werle and Jeßberger 2002b, p. 211 whereby the German implementation of war crimes tried to remedy “the confusing structure of article 8” of the ICC Statute. See also Meseke 2004, p. 279 whereby the German implementation of crimes against humanity rearranged the underlying individual acts to better reflect their degree of gravity. 29 See, e.g., Jeßberger 2018, p. 185, who explains that the German implementation was guided by three principles, namely complementarity, consistency and certainty. Reisinger Coracini 2017, p. 1043: “states have an interest in maintaining coherency within their criminal codes and will use certain terms, formulations or practices that are familiar to the national judiciary and lawyers.” See also the guidelines for the implementation of war crimes in Commonwealth countries in the Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court (April 2011) in Commonwealth Secretariat 2017, para 13: “It is important for a State also to ensure that its domestic legislation covering the Rome Statute is coherent and consistent with its existing domestic law.” 30 Werle and Jeßberger 2002b, p. 209. 31 See also Jeßberger 2018, p. 185: “Consistency rendered it obvious to follow the road which had already been taken with regard to the implementation of the other Statute crimes.” For the interest in consistency with the criminal code in general, see Reisinger Coracini 2017, p. 1043. 32 The legislature re-arranged the definitions of war crimes, for example, by largely removing the distinction between international and non-international armed conflicts, see Werle and Jeßberger 2002b, p. 207. 25

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implementation, instead of merely replicating the wording of Article 8bis of the ICC Statute.

6.1.3 The Advantages of Complete Implementation and Modified Implementation Considering the described balancing act, complete implementation and modified implementation have different advantages. The advantages of complete implementation, either by copying or by reference to Article 8bis of the ICC Statute, are threefold. First, it avoids gaps to the definition of the ICC Statute that may give rise to the complementary jurisdiction of the International Criminal Court.33 Luxembourg, for example, opted for complete implementation as “any deficiency in domestic legislation necessarily leads to the competence of the International Criminal Court”.34 Even if complementarity tolerates a certain amount of deviation,35 risk-averse States can avoid a judicial intervention by the International Criminal Court without determining whether the domestic norm would cover “substantially the same conduct”.36 Secondly, complete implementation expresses full commitment to what States adopted at the Kampala Conference.37 The adopted definition faced considerable criticism38 and the crime of aggression is sometimes sidelined in contributions and statements on crimes under international law.39 Accordingly, its domestic implementation is an important confirmation of the legitimacy of the Kampala definition.40 Modified implementations do not

33

Satzger 2012, §15 mn. 29 et seq. See also Bekou and Shah 2006, p. 509. This statement was made regarding the implementation of genocide, crimes against humanity and war crimes, see Luxembourg Chambre des Députés 2011b, p. 8. When the crime of aggression was later included in the legislative project, the Minister of Justice emphasized that this provision aims to ensure “to incorporate as faithfully as possible” the definition of the crime of aggression as contained in the Kampala Amendments, see Luxembourg Chambre des Députés 2011a, p. 2. 35 For this comment on the implementation of ICC Statute crimes in general, see Werle and Jeßberger 2020, para 464. See also Satzger 2012, §15 mn. 29 et seq. 36 On the interpretation, see Rastan 2017. 37 Complete implementation has been described as “particularly international law-friendly”, see Werle and Jeßberger 2020, para 467; Werle 2001, p. 887. See in contrast the concerns about modified implementation by Kaul whereby the reluctance to implement the Kampala definition would be inconsistent with the German efforts in Kampala to find an appropriate definition, see Kaul 2013, p. 229. In the same vein, Hoven 2014, p. 347. 38 See, e.g., Koh and Buchwald 2015. 39 See, e.g., the EU Day Against Impunity for Genocide, Crimes Against Humanity and War Crimes, organized under the auspices of the President of the Council of the EU in cooperation with the European Commission: https://www.eurojust.europa.eu/judicial-cooperation/practitioner-networks/gen ocide-network/eu-day-against-impunity. Accessed 15 September 2022. 40 For a similar argument made on domestic implementation in general, Kreß 2000, p. 30. 34

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necessarily express reservation against the Kampala definition, if made cautiously.41 Complete implementation, in contrast, avoids the risk of sending mixed signals. Thirdly, complete implementation is an economic way to take full advantage of the fruits of the time-consuming and inclusive drafting process42 that led to Article 8bis of the ICC Statute, as well as of the legitimacy that comes with an internationally defined crime. It only requires resources for a translation of,43 or a reference to, Article 8bis of the ICC Statute. It relieves the legislature from the possibly costly consultation of international law experts.44 Resorting to modified implementation has two main advantages. First, modified implementation provides the opportunity to influence international law. It formally documents certain State conceptions of the scope and interpretation of international criminal law.45 Aspects of the allegedly too vague46 definition of Article 8bis of the ICC Statute can be specified in the domestic definition. These domestic specifications may inspire the International Criminal Court when interpreting Article 8bis of the ICC Statute.47 As expressions of opinio iuris and State practice, they also influence the formation of customary international law.48 According to Reisinger Coracini, the motivation of shaping international customary law has been important among the States that opted for a modified implementation of Article 8bis of the ICC Statute.49 In light of the small number of existing implementations, States with modified implementation can strongly influence the international understanding of the crime of aggression under the ICC Statute and beyond.50 Secondly, modified implementation allows States to account for distinctive features of the national legal culture.51 This includes constitutional requirements, such as the usually stricter domestic version of the principle of legality,52 but also 41

Germany, for example, opted for a modified implementation that still mirrors the Kampala definition and deleted the reference to Article 26 of the German Constitution from the existing provision that criminalized aggression “to express its clear commitment to implementing the Kampala Amendments as closely as possible”, see Deutscher Bundestag 2016, p. 16. 42 Barriga 2012. 43 English-, French-, Spanish- or Arabic-speaking countries can resort to the official translations of the Statute provided by the International Criminal Court. See https://www.icc-cpi.int/resource-lib rary#legal-texts. Accessed 15 September 2022. See also Reisinger Coracini 2017, p. 1043. 44 For this advantage, see also Bekou and Shah 2006, p. 509: “This is the least complicated approach and requires little international criminal law expertise or resources.” 45 Werle and Jeßberger 2020, para 474. 46 See Glennon 2010, p. 71; Murphy 2009, pp. 1150 et seq.; Paulus 2009, p. 1121. 47 Even if strictly speaking, the domestic legislation of a single State is not a “source of law”, see Article 21(1)(c) of the ICC Statute. For the consideration of domestic legislation by the ICTY, see ICTY (AC), Tadi´c, Decision, 2 October 1995, para 132. 48 See Kreß 2000, p. 31; Werle and Jeßberger 2002b, p. 208; Werle and Jeßberger 2020, para 225. 49 For this conclusion to her analysis of domestic implementations of the crime of aggression, see Reisinger Coracini 2017, p. 1044. 50 Similarly, Kreß 2000, p. 31. 51 Werle and Jeßberger 2020, para 474. 52 Werle and Jeßberger 2002a, p. 730.

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general legislative preferences for conciseness,53 preferences for structuring the norm54 and the consistency with existing norms under domestic law.55

6.1.4 The Different Understandings of the Principle of Legality as a Source of Tension The domestic principle of legality56 deserves closer scrutiny. The compatibility with this principle, also known as the nullum crimen sine lege principle, was a concern of previous implementations. It was raised whenever ICC Statute definitions contained vague terms or references to (customary) international law.57 The crime of aggression will likely raise similar questions due to its allegedly vague “manifest” threshold and the references to the UN General Assembly Resolution 3314.58 The principle of legality forms part of international law59 and domestic law.60 Its understanding is generally stricter under domestic (civil) law than under international law.61 The principle of legality consists of four aspects, albeit subject to variations depending on the legal order. They can be summarized as nullum crime sine lege praevia, stricta, scripta et certa, meaning there can be no crime without previous, strict, written, and certain law.62 For domestic implementation, the aspect of lex certa 53 See, e.g., the justification of Germany to delete the list of the acts of aggression, inter alia, by its interest in concise legislation in Deutscher Bundestag 2016, p. 19. See also Jeßberger 2018, p. 189. 54 See, e.g., Werle and Jeßberger 2002b, p. 211 whereby the German implementation of war crimes tried to remedy “the confusing structure of article 8” of the ICC Statute. See also Meseke 2004, p. 279 whereby the German implementation of crimes against humanity rearranged the underlying individual acts to better reflect their gravity. 55 See, e.g., Jeßberger 2018, p. 185 Reisinger Coracini 2017, p. 1043. See also the guidelines for the implementation of war crimes in Commonwealth countries in the Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court (April 2011) in Commonwealth Secretariat 2017, para 13. 56 On the principle of legality, see, e.g., Bassiouni 2008; Gallant 2009; Kreß 2010b. For a European perspective, see Peristeridou 2015; Schabas 2015, pp. 328 et seq.; Timmerman 2018. 57 See, e.g., Kuhli 2010, pp. 113 et seq.; Satzger 2012, §15 mn. 46 et seq. 58 For a discussion of the compatibility of the Kampala definition with the international understanding of the principle of legality, see Ambos 2022, pp. 238 et seq.; Broomhall 2021, para 59; Milanovic 2012. 59 See, e.g., International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR), Article 15; European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (ECHR), Article 7. For its understanding under customary law, see Gallant 2009, pp. 352 et seq. 60 For a comprehensive collection of domestic provisions on the principle of legality, see Gallant 2009, pp. 438 et seq. 61 See Bremer 1999, pp. 59 et seq.; Broomhall 2021, para 15; Cassese et al. 2013, pp. 22 et seq. 62 See Kreß 2010b, para 1. See also Cassese et al. 2013, pp. 23 et seq. The Latin phrase nulla poena sine lege as a fixed expression is generally accredited to von Feuerbach, see Hörnle 2014, p. 131; Kuhli 2010, p. 71. See von Feuerbach 1832, para 22.

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is particularly relevant. It is equally known as the principle of legal certainty, which requires a clear definition for crimes.63 A lower level of legal certainty is accepted in legal orders that do not require written law (lex scripta).64 International law is such an order.65 Even if the rules of international criminal law are now codified, their origin in custom may sometimes shine through their lower level of certainty.66 Accordingly, the incorporation of the crime of aggression may require modification to meet the generally stricter domestic standards of the principle of legality. Rejection of complete implementation, either by copying or by reference, can be a result of the different understanding of the principle of legality under international and domestic law. While the ICC Statute definition of the crime may appear sufficiently clear for the principle of legality under international law, its domestic counterpart may require higher clarity.67 The technique of using references for implementation may cause additional tension by impeding the subject from understanding what has been criminalized. Nonetheless, a too rigid reading of the domestic principle of legality is not warranted. The assessment of the principle of legality generally depends on the typical addressees of the criminal offense.68 The expected expertise of those to whom the norm is addressed has been previously raised as an argument in favor of an attenuation of the principle of legality. Specifically in international armed conflicts where legally trained members of armed forces of States fight against each other, the subjects of the laws of war should not be overwhelmed by vague terms.69 A similar attenuation is advisable regarding the crime of aggression. It can only be committed by persons “in a position effectively to exercise control over or to direct the political or military action of a State”.70 Although a formal position of control or direction is not required, persons who typically fulfill the leadership clause are expected to have either certain

63

The lex certa rule is also known as “maximum certainty principle”, or discussed as “fair warning principle” or “void for vagueness principle”, see Ashworth and Horder 2013, pp. 85 et seq.; Hallevy 2010, p. 13. 64 Cassese et al. 2013, pp. 24, 27 et seq. There is now a tendency to require a statutory criminalization in common-law countries as well, see Chap. 4, Sect. 4.1.4. 65 On the international concept and its lack of the lex scripta aspect, see Kreß 2010b, para 21. See also Bremer 1999, pp. 59 et seq.; Cassese et al. 2013, pp. 27 et seq. Grover 2014, p. 189; Kuhli 2010, p. 110; Triffterer 1966, p. 124. 66 Glaser 1964, p. 519. See also Bremer 1999, p. 61. 67 Werle and Jeßberger 2002b, p. 209. Similarly for the domestic implementation of crimes against humanity: Meseke 2004, pp. 278 et seq. See also the legislative motives in Ecuadorian Criminal Code of 2014 [Código orgánico integral penal], para. 5: “[W]hen international instruments signed by Ecuador contain open and imprecise offense definitions, the definitions have been designed to take into account constitutional guarantees, the effectiveness of the fight against crime and the precision in the elements of the offense definition.” (Translated from Spanish). 68 See ECtHR, Cantoni v France, Judgment, 11 November 1996, Application No. 17862/91, para 35. See also Kreß 2010b, para 29. 69 Werle and Jeßberger 2002a, p. 30. In the same vein, Hecker 2019, para 21; Satzger 2004, p. 946. For a critical perspective, see Darge 2010, pp. 43 et seq. 70 See ICC Statute, Article 8bis.

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expertise in the field of ius ad bellum, or legal advisors.71 Moreover, German scholars discuss an attenuation of the principle of legality for domestic implementations of norms from international law due to the international law-friendly approach of the German constitution.72 Similar concepts of interpretation exist in other States.73 Normally, such an interpretation tries to prevent a State from breaching obligations under international law.74 Due to the lack of an obligation, this is not a concern when States fail to completely copy the definition from the ICC Statute. Nonetheless, a “cautiously attenuated level of legal certainty” is justified given that the International Criminal Court could theoretically intervene and prosecute the individual based on the definition of ICC Statute.75 As the understanding of the principle of legality differs among domestic legal orders, there is no universally applicable answer to the question of compatibility of domestic implementation with the principle of legality. The discussion of the options for implementation will therefore be limited to the underlying rationales of the principle of legality to discuss why certain options risk a conflict. The rationales provided by scholars include the protection of the individual against State arbitrariness, the promotion of the purposes of criminal law such as deterrence, and the separation of powers and democratic principles in States that require written law.76 By previously laying out by law which acts are considered criminal, individuals are provided with foreseeability and calculability and courts prevented from arbitrarily convicting individuals.77 This is linked to the rationale of legality to support the realization of the purposes of criminal law, “most prominently”, the purpose of deterrence.78 To have a “psychologically compelling”79 or deterrent effect, criminal law must previously define with sufficient clarity the criminal conduct to enable potential perpetrators to foresee what kind of conduct is prohibited and to adapt their conduct accordingly.80 Finally, the principle of legality in countries that require a written law ensures the separation of power and democracy. Consistent with the social contract theory, citizens accept limitations to their liberties provided they are necessary for 71

For a similar reasoning with respect to the former German provision on war of aggression, see Hoven 2014, p. 352. 72 The so-called “Völkerrechtsfreundlichkeit”, see Satzger 2004, p. 946; Werle and Jeßberger 2002a, p. 730. In the same vein, Meseke 2004, p. 279; Hoven 2014, p. 351. But see, in contrast, Kuhli 2010, p. 177. 73 See Jennings and Watts 2008, p. 81; Wildhaber and Breitenmoser 1988, p. 169. 74 See Wildhaber and Breitenmoser 1988, p. 169. 75 Satzger 2004, p. 946; Satzger 2012, paras 48 et seq. 76 For the purposes of the principle of legality, see in detail Gallant 2009, pp. 19 et seq.; Kreß 2010b, paras 2 et seq. For the German perspective, see Jakobs 1991, pp. 64 et seq. 77 Gallant 2009, pp. 21; Glaser 1964, pp. 517; Kreß 2010b, para 3; Krey 1983, para 13. 78 Gallant 2009, p. 26. 79 See von Feuerbach 1832, paras 20 et seq., who deduces the nullum crime sine lege principle from the psychologically compelling function of criminal law. See Hörnle 2014, p. 132. For a critical account and a rejection of prevention as an underlying rationale of the principle of legality under German law, see Kuhli 2010, pp. 80 et seq. 80 Jakobs 1991, p. 65; Kreß 2010b, para 29; Moll 1998, pp. 128 et seq.

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their peaceful coexistence, and they are established by the democratically elected State organ.81 With these rationales of the principle of legality in mind, the options that are discussed in the following sections are implementation by copying, implementation by reference and modified implementation.82

6.2 Implementation by Copying The first option is implementation by copying.83 It incorporates the crime of aggression into domestic law by replicating the wording of Article 8bis of the ICC Statute verbatim. It is also described as “verbatim implementation”,84 “replication method”,85 “literal transcription”86 and as a type of the “codification model”.87 English-, French-, Spanish- or Arabic-speaking States can use the official translations of the ICC Statute provided by the International Criminal Court.88 However, there are rarely implementations without any deviations. The Luxembourg and Dutch implementations probably still count as implementations by copying, although they left out the language of “in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974”.89 However, a State will not opt for implementation by copying, if the content of the replicated norm, Article 8bis of the ICC Statute, does not meet the standard of the domestic principle of legality.90 In contrast to the implementation by reference, implementation by copying avoids an additional tension with the principle of legality. It does not require the subject of the norm to make the intellectual effort to look up the relevant norm. Instead, it makes the definition of the crime of aggression directly accessible. The replication of the 33-lined definition of Article 8bis of the ICC Statute, instead of a short reference to it, however, does not lead to a concise domestic provision. 81

Kreß 2010b, para 5. See also Gallant 2009, p. 24; Hallevy 2010, pp. 35 et seq.; Roxin 2006, pp. 146 et seq.; Stahn 2019, p. 11. 82 For the different options for implementation, see Werle and Jeßberger 2020, paras 467 et seq. See also Bekou and Shah 2006, pp. 509 et seq.; Bekou 2017, pp. 275 et seq.; Case Matrix Network 2017, pp. 21 et seq.; Jeßberger and Powell 2001, pp. 352 et seq.; Kreicker 2005, pp. 319 et seq.; Kreicker 2006, pp. 24 et seq. For a slightly different categorization, see Hankins 2010, pp. 14 et seq.; Imoedemhe 2017, pp. 72 et seq.; Rikhof 2009, pp. 10 et seq. 83 Werle and Jeßberger 2020, para 470. 84 Liechtenstein Institute on Self-Determination 2012, p. 15. 85 Case Matrix Network 2017, p. 22. 86 Hankins 2010, p. 8; Imoedemhe 2017, p. 73. 87 See Jeßberger and Powell 2001, pp. 352 et seq. 88 See https://www.icc-cpi.int/resource-library#legal-texts. Accessed 15 September 2022. 89 See Article 136quinquies of the Luxembourg Criminal Code; Article 8b of the International Crimes Act of the Netherlands. 90 See, in detail, Sect. 6.4.

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6.3 Implementation by Reference The second option is the implementation by reference.91 Instead of reproducing the language of the ICC Statute, States create a domestic provision that contains a threat of punishment and refers for the definition of the crime to Article 8bis of the ICC Statute or international law. This creates the impression of a concise implementation, although the reference technique does not condense the substance of the definition. Among the 16 implementers, Cyprus and Samoa opted for an implementation by reference.92 This confirms the tendency found for the domestic implementation of other core crimes. The implementation by reference is avoided by civil law countries and primarily chosen by States influenced by common law.93

6.3.1 Different Types of References as Illustrated by the Samoan Implementation Implementations by reference can differ depending on which type of reference is used. Due to its integration of different types of references, the Samoan provision offers a good illustration.94 The type of reference can make a difference when it comes to the compliance with domestic versions of the principle of legality. The Samoan provision can be characterized as a norm with several so-called “blanket references”. This means that the Samoan referring norm only contains the formal threat of punishment while the constituent elements of the crime can be found in the international norm.95 Metaphorically speaking, the domestic referring provision is “blank”.96 It requires the ICC Statute provision, or the sources it refers to, for providing the definition. Paragraph 1 of Section 7A of the Samoan International

91

On the implementation by reference, see Bekou and Shah 2006, p. 509; Jeßberger and Powell 2001, p. 352; Werle 2001, p. 887; Werle and Jeßberger 2020, para 459. 92 See Articles 2 and 3 of the Law 3(III)/2018 amending the Rome Statute for the Establishment of the International Criminal Court (Ratification) Law of 2002 in conjunction with Articles 2 and 4(1) of the Law 8(III)/2002 as amended by Law 23(III)/2006; Section 7A of the Amended Samoan International Criminal Court Act. 93 See Jeßberger and Powell 2001, p. 353. 94 The style of the Samoan provision, a combination of a specific and generic reference, largely mirrors the approach previously taken and suggested by the Commonwealth Model Law for the implementation of genocide, crimes against humanity and war crimes in Commonwealth countries. See Commonwealth Secretariat 2017, pp. 6 et seq. The Model Law does not include provisions on the crime of aggression as it was perceived “premature” to implement it before the activation of the jurisdiction of the International Criminal Court. 95 For the definition, see also Ambos 2018a, p. 328; Darge 2010, pp. 230 et seq.; Ernst 2018, pp. 36 et seq.; Karpen 1970, p. 85; Moll 1998, p. 46. See also the definition of the German Federal Constitutional Court, Decision, 21 September 2016, BVerfGE 143, 38, para 44. 96 Or “naked”, see Kühl 2018, p. 820.

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Criminal Court Act sets out the sanction for the crime of aggression.97 Paragraph 2 continues with a specific and a generic reference in order, to define the crime of aggression. “For the purpose of this section”, paragraph 2 starts, “‘crime of aggression’ is an act specified in Article 8 bis of the Statute”. This can be described as “targeted”98 or “specific” reference, as it names a specific object of reference. The second reference of the Samoan norm is called “generic”99 or “global”100 reference, as it refers to a whole field of law or set of norms.101 It includes as a crime of aggression “any other act which at the time and in the place of its commission, constitutes a crime of aggression according to customary international law or conventional international law or by virtue of it being criminal according to the general principles of law recognised by the community of nations”. Both the targeted and the generic reference are “external references” to be distinguished from “internal references”.102 This is because they refer to sources of international law that have not been created by the Samoan but another legislature, namely by States Parties to the ICC Statute or the international community. Finally, a distinction can be made between static or dynamic references.103 In contrast to static references, the content of a dynamic references may vary over time as they refer to a norm in the version currently in force. If the Samoan legislature followed the approach recommended by the Commonwealth Model Law for the other core crimes, it seems as if the reference to international treaty, custom and general principles was meant to be a dynamic one to ensure a “living” definition “without the need for subsequent amendment”.104 To conclude, the Samoan provision on the crime of aggression contains a targeted, external and arguably a dynamic blanket reference to Article 8bis of the ICC Statute. It also contains a generic, external and arguably a dynamic blanket reference to treaty,

97

It reads as follows: “A person who, in Samoa or elsewhere, commits a crime of aggression commits an offence and is liable on conviction to life imprisonment”. 98 Werle and Jeßberger 2020, para 470. 99 See European Parliament, Council of the European Union and European Commission, Joint Handbook for the Presentation and Drafting of Acts Subject to the Ordinary Legislative Procedure, May 2016, 59. Legislation by reference is a common technique in the European Union. 100 Werle and Jeßberger 2020, para 470. 101 See Ernst 2018, pp. 33 et seq.; Karpen 1970, p. 41. 102 For the definition, see Darge 2010, p. 229; see also Ernst 2018, p. 16 et seq. 103 For the definition of static and dynamic reference, see the definition of the German Constitutional Court, Decision, 21 September 2016, BVerfGE 143, 38, para 43. See also Ambos 2018a, p. 328.; Clemens 1986, pp. 80 et seq.; Darge 2010, p. 229. 104 Commonwealth Secretariat 2017, p. 6 fn. 9, 59. A literal interpretation also suggests that the generic reference to “customary international law”, “conventional international law” and “the general principles of law recognised by the community of nations” is a dynamic one. It suffices pursuant to Section 7A of the Samoan International Criminal Court Act that the act constitutes “at the time…of its commission” a crime of aggression according to the wording of one of these sources.

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custom and general principles.105 By referring only to Article 8bis of the ICC Statute for the definition of the crime of aggression, the Cypriot provision only contains the former type of reference.106

6.3.2 Tensions with the Principle of Legality? Unlike the technique of copying, implementation by reference can provoke tensions with the principle of legality under domestic law. “Blanket references”, such as those used in the Samoan and Cypriot provisions, make it more difficult for the subject to fully grasp the type of conduct that falls under the scope of the crime of aggression by reading the domestic provision alone. The technique of using references has therefore been described as a severe act of legislative discourtesy which prioritized convenience at the expense of the reader.107 Whether the implementation by references is a viable option for a State depends on the type of reference used. It also depends on its understanding of the principle of legality. This can be more lenient in countries with a common law tradition (Sect. 6.3.2.1) and stricter in States with Tatbestandszwang (Sect. 6.3.2.3). For legal orders located between these extremes, the rationales of the principle of legality help identify potential tensions (Sect. 6.3.2.3).

6.3.2.1

Blanket References as Accepted Technique in Countries with Common Law Tradition

As the Model Law drafted for Commonwealth countries and academic writings illustrate, the reference model is less problematic in States influenced by common law. The Model Law recommends implementing core crimes by a blanket reference to the ICC Statute and optionally with the additional blanket reference to other sources of international law.108 In a footnote, the Model Law admits that “[i]f there are concerns about the sufficiency of incorporation by reference, the text of the Statute definitions can be replicated in the legislation.”109 In academic writings on the implementation of core crimes in England and Wales, the principle is not discussed as a potential 105

The following assessment leaves out blanket references to general principles of international law as jurisprudence has never found specific crimes to be contemplated by the notion of “general principles of law”, see Schabas 2015, p. 352. 106 Articles 2 and 3 of the Law 3(III)/2018 amending the Rome Statute for the Establishment of the International Criminal Court (Ratification) Law of 2002 in conjunction with Articles 2 and 4(1) of the Law 8(III)/2002 as amended by Law 23(III)/2006. 107 See Staats 1978, p. 60. See also Ernst 2018, p. 61. 108 See Commonwealth Secretariat 2017, pp. 6 et seq. The technique of using blanket references under English law is known as “cross-references”, see Ambos 2018a, p. 366 fn. 189. 109 Commonwealth Secretariat 2017, p. 6 fn. 8. The principle of legality is discussed in explicit terms only with respect to the temporal jurisdiction and the possibility of retroactive application of the implemented provisions, see Report of the Commonwealth Expert Group on Implementing

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challenge to the implementation by reference.110 It is not surprising that the lack of a clear definition in domestic written law does not seem problematic in common law countries, where the subjects of a norm are used to custom as a source of criminal law.111

6.3.2.2

Blanket References Precluded in States with Tatbestandszwang

The other extreme is domestic legal orders where the principle of legality requires the domestic provision to set out the constituent elements of the crime (Tatbestandszwang). In those orders, implementation by using a blanket reference of any type is precluded.112 In an advisory opinion concerning the use of blanket references, the European Court of Human Rights alludes to legal orders with Tatbestandszwang: “In some legal systems the referencing provision must set out the penalty and the essential elements of the offence. The referenced provision has only interpretative relevance…”113 A blanket provision, such as the Samoan one, refers to international law for defining purposes rather than interpretative purposes. It completely lacks the essential elements of the crime of aggression and only provides for the sanction. Such an implementation would not be possible in States where the principle of legality results in a Tatbestandszwang.

6.3.2.3

Between the Extremes: Testing the Variations of Blanket References Against the Rationales of the Principle of Legality

In all other countries that are located between these two extremes, it seems as if the use of certain blanket references is not per se precluded. This is at least suggested by the more recent jurisprudence of the German Constitutional Court on blanket provisions in the context of implementing European law. To comply with the lex certa rule, the German Constitutional Court requires the crime to be sufficiently clearly described in the provision referred to or in the referring

Legislation for the Rome Statute of the International Criminal Court (April 2011) in Commonwealth Secretariat 2017, paras 16 et seq. 110 Cryer 2002; Cryer and Bekou 2007; Olleson and Brubacher 2005. 111 However, there is now a tendency to require statutory criminalization in common law countries as well. See Chap. 4, Sect. 4.1.4. 112 See Werle 2001, p. 887. 113 ECtHR, Advisory Opinion, 29 May 2020, Request No. P-16-2019-001, para 35. It also states that various examples of this approach can be found in the case-law of Austrian, Portuguese, Slovenian and Spanish Constitutional Courts. The Austrian Constitutional Court, however, held that the legislative technique of formally separating the constituent elements from the threat of punishment, as is characteristic of blanket norms, is not per se unconstitutional, see Austrian Constitutional Court, Decision, 13 December 1991: https://www.ris.bka.gv.at/Dokumente/Vfgh/JFT_10088787_ 91G00280_2_00/JFT_10088787_91G00280_2_00.pdf. Accessed 15 September 2022.

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provision.114 It is thus their combined reading which must enable the subject of the norm to foresee the possible cases that fall into the scope of application. Unless it contains a dynamic reference, there is no Tatbestandszwang, the referring provision does not need to set out the essential elements of an offense.115 The provision referred to may therefore be more than of “interpretative value”. The European Court of Human Rights shares this view. It does not consider blanket references incompatible with the requirements of the broader understanding of the principle of legality under the European Convention of Human Rights.116 It holds that the referring provision and the provision referred to, read together, must enable the individual to foresee what conduct would make him or her criminally liable.117 Nonetheless, the European Court of Human Rights appears to rank the design where the referring provision outlines the constituent elements of the offense as the “most effective way of ensuring clarity and foreseeability”.118 Even if there was a legal possibility to use certain references, there is still a reluctance among civil law countries to use them for the implementation of international criminal law. Estonia and Germany, for example, rejected the implementation by reference due to their domestic understanding of the principle of legality.119 This rejection may not necessarily be due to the technique of using references. It can simply be due to the lack of sufficient clarity of the provision of the ICC Statute, which provides the definition. Whether the definition of Article 8bis of the ICC Statute is sufficiently clear to comply with domestic understandings of the principle of legality will be assessed in the sections on “modified implementation” (Sect. 6.4). Assuming that the definition in Article 8bis of the ICC Statute is sufficiently clear, the compatibility with the principle of legality depends only on the type of the reference used. Where a domestic provision, like the Samoan one, uses a targeted static blanket reference, the reluctance is less justified in light of the underlying rationales of the principle of legality. Such a domestic provision, which refers explicitly and statically to the definition of Article 8bis of the ICC Statute, is merely a legislative short-cut. It does not lose full control of the democratic crime-defining power.120 It provides the same level of protection against State arbitrariness as implementation by 114

See German Federal Constitutional Court, Decision, 21 September 2016, BVerfGE 143, 38, para

46. 115

See, e.g., the position of the German Supreme Court of Justice, Decision, 17 March 2011, 5 StR 543/10, p 3. In other words, dynamic references are subject to a Tatbestandszwang. 116 ECtHR, Advisory Opinion, 29 May 2020, Request No. P-16-2019-001, para 70. 117 Ibid., para 74. 118 Ibid. 119 For Estonia, see explanatory memorandum, which indicates that as a rule the Estonian Criminal Code avoids direct reference to the norms of international law and that the substance of the international offense definitions has been directly written into the respective Articles of the Penal Code due to the principles of legality and legal certainty, see Estonia Eelnõu SE 119, at 6.1.; Parmas 2017, p. 897. For Germany, see Jarasch and Kreß 2000, p. 95: “For constitutional reasons Germany cannot incorporate the crimes under international law in its legal order by way of a general reference to the pertinent international norms.” Similarly, Werle and Jeßberger 2002b, p. 200. 120 See similarly the position of the German Federal Constitutional Court, Decision, 21 September 2016, BVerfGE 143, 38, para 43. If the targeted external reference to Article 8bis of the ICC

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copying. It reduces judicial discretion through the required systematic interpretation with the parent norm.121 Admittedly, it would be more “user-friendly” to replicate the constituent elements of the crime in the wording of the domestic provision than to require the norm’s subject to look up Article 8bis of the ICC Statute to determine the applicable law (“Rechtsauffindungsaufwand”).122 Nonetheless, the foreseeability and calculability of the punishable conduct is not impaired.123 A targeted reference, especially a static one, leaves no room for vagueness as to the object of reference.124 Moreover, the crime of aggression can only be committed by persons from the leadership circle of a State.125 These people are mostly legally trained or legally advised.126 They are not overwhelmed by looking up a single treaty provision they have to respect in any case.127 The second type of reference used in the Samoan provision is a generic static reference to international treaty law. Depending on the domestic understanding of the principle of legality, a generic static reference to international treaty law may still provide enough guidance for domestic courts. It may also provide enough foreseeability for the legally trained or advised subjects of the norm. This is due to the “manageable” number of definitions of the crime of aggression that exist in a written form in treaties.128

Statute is dynamic, in contrast, there is the risk that the domestic legislature loses control over its democratic crime-defining power to another legislature, namely to the States Parties of the International Criminal Court. For the similar discussion about references to European law, see Ambos 2018a, p. 335; Satzger 2000, pp. 260 et seq. 121 Combined with the numerous interpretative aids that are available for Article 8bis of the ICC Statute, namely the ICC Elements of Crime and the Understandings adopted at the Kampala Conference. See Review Conference of the Rome Statute 2010, Annex II, III; the travaux préparatoires in Barriga and Kreß 2011a as well as academic writings, such as Kreß and Barriga 2017; Zimmermann and Freiburg-Braun 2019; Zimmermann and Freiburg-Braun 2021. 122 See the similar discussion on blanket references to European law in Ambos 2018a, p. 334. 123 Especially if there exists an official translation of Article 8bis of the ICC Statute in the same language as used for the domestic referring norm. Similarly assuming that the language of the norms referred to is decisive for its compliance with the principle of legality: La Rosa and Chavez Tafur 2010, p. 476. 124 See Ambos 2018a, p. 334. 125 The subjects of the norm on the crime of aggression are not average citizens but those “in a position effectively to exercise control over or to direct the political or military action of a State”, see Article 8bis(1) of the ICC Statute. 126 At least for those aggressors whose effective control or direction coincides with a formal position within the State (e.g., head of State, head of government, minister of defense). For an attenuated standard of the principle of legality in case of expert criminal law, see Werle and Jeßberger 2002a, p. 730. In the same vein, Hecker 2019, para 21; Hoven 2014, p. 350; Satzger 2004, p. 946. See also German Federal Constitutional Court, Decision, 15 March 1978, BVerfGE 48, 48, 57; ECtHR, Cantoni v France, Judgment, 11 November 1996, Application No. 17862/91, para 35. 127 Due to the possibility of a judicial intervention by the International Criminal Court upon UN Security Council referral. For a similar thought, see Satzger 2004, p. 946. 128 This would be different in case of a generic blanket reference to definitions of war crimes in international treaties due to the large number of treaties in the field of ius in bello.

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The third type of reference used in the Samoan provision, the generic and dynamic blanket reference to customary international law, in contrast, generates the most tension with the principle of legality. Although there are well-established rules on how to determine customary international law,129 it is also a challenge for international law experts to agree on the same outcome, as shown by the International Law Commission. A fortiori, domestic courts, often unfamiliar with customary international law, will have difficulties with such a generic dynamic reference.130 For the subject of the norm, even if not a layperson, the foreseeability and calculability of the punishable conduct depends on the determination of the state of customary international law. This requires an intellectual effort more significant than the one required to look up a precisely cited provision. Irrespective of the chosen variation of the blanket reference, domestic provisions that do not set out the definition make it more difficult for the public to understand what is essentially criminalized by the crime of aggression. The use of a blanket reference renders criminal law more cryptic. Due to the special situation of having legally trained or advised norm subjects, the instrumental function of criminal law may not be undermined by a cryptic blanket reference. The symbolic function of the criminalization of aggression, however, may suffer.131 In many countries, the crime of aggression will be a “symbolic law”,132 without a significant scope of application. The existence of such a “symbolic law” is still justified to legislatively confirm the validity of a social norm.133 If the criminalization of aggressions aims to affirm the commitment to the prohibition of the use of force and the peaceful coexistence of States, a blanket reference to “Article 8bis of the ICC Statute” or other sources of international law carries less expressive value.134

6.3.3 Conclusion The implementation by reference is an economic way of bringing domestic law into full alignment with the ICC Statute, without leaving gaps that may invite the International Criminal Court to exercise its complementary jurisdiction. As the recommendation in the Commonwealth Model Law, and examples from Samoa and Cyprus 129

See, e.g., International Law Commission 2018. See the criticism raised against dynamic references in war crimes provisions, which have been described as “perfectly unacceptable” although they were not even blanket references, see Satzger 2002, p. 131. For a more nuanced view, see Kuhli 2010, p. 181; Kuhli 2012, pp. 129 et seq. 131 Each criminal law has an instrumental and symbolic function, see Hassemer 1989, p. 555. 132 On the different types of symbolic laws, see Voß 1989, pp. 15 et seq. See also Hassemer 1989, p. 554. 133 See Amelung 1980, p. 55. 134 This may even affect the instrumental function of the criminalization of aggression. The reference to an international treaty may impede the public to use the channels of democratic oversight. Citizens cannot publicly raise their voice against dubious military interventions if they do not know the essential elements of the crime in the first place. 130

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show, the implementation by reference is less problematic in States influenced by common law. A conflict between blanket references and the domestic principle of legality notably arises in countries that require the domestic provision to outline the constituent elements of the crime (Tatbestandszwang). In all other countries, tensions with the principle of legality are less acute if the domestic provision uses a targeted static blanket reference to Article 8bis of the ICC Statute. This reference enables the norm subject to foresee what kind of conduct is prohibited through a combined reading with an international norm they must respect in any case. Tensions with the principle of legality can still arise in case of targeted static blanket references to Article 8bis of the ICC Statute if this provision of the ICC Statute is not sufficiently clear. This will be part of the following discussion.

6.4 Modified Implementation The most common135 option for domestic implementation is the modified implementation. It incorporates the definition of the crime of aggression with certain deviations from Article 8bis of the ICC Statute.136 There is a theoretically infinite number of possibilities of how to modify the definition of the ICC Statute for domestic purposes. The following discussion is limited to those modified implementations used by States since the Kampala Conference.137 It will describe what implementers have essentially modified about the definition of the parent norm138 and evaluate these modifications in light of the criticism the parent norm has previously received.

6.4.1 Over-Inclusive and Under-Inclusive Implementations Most modified implementations did not depart greatly from the definition of Article 8bis of the ICC Statute. States Parties of the ICC Statute try to find a right balance between what was agreed in Kampala and domestic legislative preferences, legal principles, and the interest of influencing international law.

135

From the analyzed 16 implementations of the definition of Article 8bis of the ICC Statute, twelve have opted for a modified implementation. Among them are Afghanistan, Austria, Croatia, the Czech Republic, Ecuador, Estonia, Finland, Georgia, Germany, Liechtenstein, North Macedonia and Slovenia. 136 See, in general, Werle and Jeßberger 2020, para. 474. 137 Apart from the primary sources and State reports, it largely builds on the analysis of Reisinger Coracini 2017. See also the various state-specific analysis of domestic implementations such as Jeßberger 2018; Parmas 2017; Turkovi´c and Munivrana Vajda 2017. 138 Parent norm refers to the norm in the international treaty which is implemented into domestic law.

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Modified implementation can lead to over-inclusive or under-inclusive definitions compared to the parent norm under the ICC Statute.139 Domestic definitions of the crime of aggression are over-inclusive when the modifications broaden the scope of application compared to the parent norm. The domestic implementation can adopt, for example, a lower threshold for the criminal use of force, a wider personal scope, or the inclusion of acts by non-State actors. According to Reisinger Coracini’s study, when national definitions deviate from Article 8bis of the ICC Statute, they tend to amount to over-inclusive implementation.140 Domestic provisions beyond the Kampala definition, however, may result in a lack of cooperation from other States141 for political reasons as well as legal reasons.142 By contrast, under-inclusive implementations narrow the scope of application in comparison to the parent norm. They set up additional requirements to the definition of Article 8bis of the ICC Statute. The normative gaps vis-à-vis the ICC Statute may render the State unable to prosecute certain crimes of aggression.143 This makes criminal accountability dependent upon a judicial intervention by the International Criminal Court. Domestic definitions of the crime of aggression occasionally depart from the ICC Statute, while explanatory memoranda to the implementations clearly state that the law reform aims to make the domestic law consistent with the Kampala Amendments. These are unintentional deviations. Legislative output does not always correspond to legislative intent. In these cases, domestic courts may still engage in a teleological interpretation of the domestic provision. They can bring it in line with the purpose (telos) pursued, namely the intended implementation of the Kampala definition. Such an interpretation, in light of Article 8bis of the ICC Statute, may also be possible on the basis of a specific interpretative doctrine. It presumes that the legislative branch intended to conform domestic law to international law.144 This ultimately depends on the domestic understanding of the doctrine, as States do not violate an obligation under the ICC Statute or international law by departing from the definition enshrined in Article 8bis of the ICC Statute.145 139

See Bekou 2012, p. 680. Reisinger Coracini 2017, p. 1072. 141 Liechtenstein Institute on Self-Determination 2012, p. 16. For other problems of over-inclusive implementations, see Parmas 2017–2018, pp. 125 et seq. 142 When a European State issues an arrest warrant for a foreigner abroad, for example, European law does not require the verification of the double criminality of the act under the law of the requested State in case of “crimes within the jurisdiction of the International Criminal Court”. See Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), Article 2(2). If read strictly, the requesting State that lacks a definition of the crime of aggression under domestic law could reject the execution of the arrest warrant for acts that go beyond the Kampala definition. 143 See on the problem for under-inclusive implementation in general, Parmas 2017–2018, pp. 126 et seq.; Satzger 2012, §15 mn. 45. 144 See generally Seidl-Hohenveldern 1963, p. 113; Wildhaber and Breitenmoser 1988, p. 166 et seq. 145 The “presumption against a violation of international law” and the corresponding “international law friendly interpretation” can be explained by a State’s interest in avoiding State responsibility 140

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6.4.2 Modifications with Respect to the Underlying Act of Aggression The parts of Article 8bis of the ICC Statute that were modified for the purpose of domestic implementation were often those that have been criticized before. The criticism raised in a different context against the parent norm can give an indication of why modified implementation may be an attractive avenue. The “act of aggression” as defined in Article 8bis(2) of the ICC Statute is one component that has been criticized and has led to modified implementations. Almost all implementers have made at least a subtle modification. Article 8bis(2) of the ICC Statute consists of a generic definition of the “act of aggression” and a specific list of specific acts of aggression with the following language: “Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:…” The generic definition of Article 8bis(2) of the ICC Statute largely corresponds to Article 1 of the annex of the UN General Assembly Resolution 3314.146 The list of specific acts of aggression corresponds to Article 3 of the annex.147 This UN General Assembly Resolution did not intend to provide a definition for criminal adjudication. It aimed at guiding the UN Security Council when deciding on the existence of an act of aggression under Article 39 of the UN Charter.148 As explained in Chap. 3, the act of aggression as understood in Article 8bis of the ICC Statute, is restricted to the conduct of a State and therefore excludes violence by non-State actors.149

6.4.2.1

General Criticism Raised Against the Parent Norm

In discussions unrelated to domestic implementation, Article 8bis(2) of the ICC Statute was criticized by scholars for decontextualizing the resolution’s definition for criminal law purposes,150 the “constructively ambiguous”151 reference to the UN for a breach of international law. See Wildhaber and Breitenmoser 1988, p. 169. If States do not risk responsibility for deviating from the ICC Statute, one could argue that courts do not necessarily need to interpret the domestic norms in light of Article 8bis of the ICC Statute. 146 See UN General Assembly 1974, Annex, Article 1. Barriga 2012, p. 26; Zimmermann and Freiburg-Braun 2021, para 87. 147 See UN General Assembly 1974, Annex, Article 3. Barriga 2012, p. 26; Zimmermann and Freiburg-Braun 2021, para 87. 148 See UN General Assembly 1974, operative para 4. See also Broms 1977, p. 357; Bruha 2017, pp. 163 et seq; Kreß and von Holtzendorff 2010, p. 1192; McDougall 2021, pp. 102 et seq. 149 See Chap. 3, Sect. 3.6.1. Kreß and von Holtzendorff 2010, p. 1190. See already the restriction to the conduct of a State in Barriga and Kreß 2011c. 150 See, e.g., Ambos 2010, p. 487; Heinsch 2010, p. 723; McDougall 2021, p. 121; Paulus 2009, p. 1120. 151 Kreß and von Holtzendorff 2010, p. 1191.

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General Assembly Resolution 3314 and its risk of including other, more controversial articles.152 The list of specific acts of aggression was criticized for its internal incoherency153 and the uncertainty about whether its nature is exhaustive or nonexhaustive.154 Moreover, the fixation on a State act of aggression and the exclusion of unlawful use of armed force by non-State actors has been criticized for being “exceptionally antiquated”.155

6.4.2.2

Omission of the Reference to the UN General Assembly Resolution 3314

The most common modification concerning the act of aggression was the deletion of the language of “in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974”.156 Among 12 States that opted for modified implementation, as of 2022, only Finland kept the reference.157 The reasons were not always clear. Bühler and Reisinger Coracini, who were both involved in the Austrian implementation, explain that the deletion corresponds to Austrian practice regarding references to international law documents.158 Although the deletion of the reference to the UN General Assembly Resolution 3314 constitutes a deviation in language from the parent norm, maintaining the “constructively ambiguous”159 reference appears to be superfluous. This reference can also conflict with the domestic principle of legality.160 It introduces an element of uncertainty. It refers to an external document which was designed for purposes unrelated to criminal law and suggests the non-binding nature of the definition and a role for the UN Security Council.161 This risks conflicting with the underlying rationale of legality, which aims to protect individuals against State arbitrariness and 152

Such as Article 4, which affirms that the list of acts is not exhaustive and that the UN Security Council may determine that other acts than those listed constitute an act of aggression. See Paulus 2009, p. 1120. 153 See Ambos 2010, pp. 487 et seq.; Hoven 2014, pp. 356 et seq.; Kreß 2009, p. 1137; Paulus 2009, p. 1121 154 Ambos 2010, p. 487; Heinsch 2010, p. 724; Kemp 2017, pp. 178 et seq.; McDougall 2021, pp. 128 et seq. See also during the drafting process Barriga and Kreß 2011g, para 50 whereby those favoring a closed list expressed the view that the ambiguity of the nature of the list was in itself problematic under the principle of legality. 155 Scheffer 2017, p. 84. See also Cassese 2007, p. 847; Drumbl 2009, p. 291. For the attempt to define the wrong differently, see Lieblich 2016. 156 Even Luxembourg, which was categorized as implementation by copying leaves out this language. See Article 136quinquies of the Luxembourg Criminal Code. 157 See Chapter 11, Section 4a of the Finnish Criminal Code. 158 Bühler and Reisinger Coracini 2015, p. 510. 159 Kreß and von Holtzendorff 2010, p. 1191. 160 Especially for civil law countries, see Reisinger Coracini 2017, p. 1047. 161 Given that the UN Security Council may determine other acts of aggression than those listed. See UN General Assembly 1974, operative para. 4 as well as Annex, Article 4.

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support the deterrent effect of criminal law.162 Scholars involved in the drafting of Article 8bis of the ICC Statute emphasized that the global reference was not meant to implicitly include more controversial articles of the annex to the UN General Assembly Resolution.163 The omission of the reference in implementations ensures, however, that the domestic definition is not misread by courts and individuals due to such an “constructively ambiguous” element.164 This can increase the level of legal certainty. The reference has been described as a mere “statement of the source of the definition” of the act of aggression.165 This is why the deletion of this informative but rather obsolete statement also promotes a concise legislation.166

6.4.2.3

Omission of the List of Acts of Aggression

More than half of the 12 modified implementations omitted the list of acts of aggression in their domestic definitions.167 The reasons for the omission in the domestic definition were not always clear. The German government, however, explained the omission by its interest in concise legislation and the principle of legality.168 It voiced concerns over the uncertainty about whether the list of acts is supposed to be exhaustive.169 In that regard, it seems to respond to criticism previously raised against the parent norm. While States can express their full support of the Kampala definition by retaining the list of acts of aggression, its deletion does not lead to a substantially different domestic definition. The use of armed force still needs to fulfill the generic definition of an act of aggression.170 The addition of a general clause in a legal provision is an unmistakable sign that the list of examples is superfluous.171 The deletion of the list ensures a more concise definition. The internal inconsistency of the listed acts

162

See also Ambos 2010, p. 487, who deplores a conflict with the lex praevia and lex certa aspect of legality. 163 See Barriga 2012, pp. 26 et seq.; Clark 2010, p. 696; Kreß 2009, p. 1137; Kreß 2017, p. 436. 164 Kreß and von Holtzendorff 2010, p. 1191. 165 McDougall 2021, p. 124. 166 But see El Zeidy 2017, pp. 978 et seq., where the deletion of the reference could lower the threshold necessary for an act of aggression by deleting the reference to articles of the annex of the Resolution which emphasize the gravity of acts of aggression. 167 See Section 321k of the Austrian Criminal Code; Section 405a of the Czech Criminal Code; Article 88 of the Ecuadorian Criminal Code; Section 91 of the Estonian Criminal Code; Article 404 of the Georgian Criminal Code; Section 13 of the German Code of Crimes against International Law; Section 321l of the Liechtenstein Criminal Code. 168 Deutscher Bundestag 2016, p. 19. See Section 13 of the German Code of Crimes Against International Law. 169 Deutscher Bundestag 2016, p. 19. 170 See Kreß 2009, p. 1137. 171 This is explained in general terms by Noll, one of the leading scholars in the field of legislative theory. See Noll 1973, pp. 267 et seq.

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is another point of criticism,172 which favors deleting the seven subparagraphs of Article 8bis(2) of the ICC Statute. As to the principle of legality, it is debatable whether deleting the list of acts of aggression enhances the precision of the norm. It could even be claimed that the listed examples rather enhance than jeopardize the understanding of the norm.173 They make the generic definition more tangible for subjects of the norm and judges alike. Admittedly, there was a certain unease to include a non-exhaustive174 list of acts in previous domestic implementations. The domestic incorporation of the residual clause of the crime against humanity of “other inhumane acts” of Article 7(1)(k) of the ICC Statute was considered as being incompatible with the principle of legality under German and Austrian law.175 A handbook on the implementation of the Kampala Amendments issued by the Liechtenstein Institute on Self-Determination also anticipated possible tensions with domestic requirements regarding the principle of legality. This principle may induce some States “to incorporate the list of acts contained in Article 8bis(2) in such a manner as to ensure that it is read as an exhaustive list, rather than an exemplary list.”176 Half of the implementers, however, simply deleted it.177 Given that every act of aggression needs to fulfill the generic definition,178 other scholars assume that the list of Article 8bis(2) of the ICC Statute is “semi-open”, at best, and is compatible with the principle of legality.179 Overall, the deletion of the list of acts of aggression can be perceived as a technical rather than substantive modification. Regarding the principle of complementarity, the modification does not leave normative gaps that could render States unable to prosecute a particular aggression case and make criminal accountability dependent upon the International Criminal Court. It also does not lead to an over-inclusive implementation, which could jeopardize the benefits linked to the international nature of the crime.

172

See, e.g., Ambos 2010, pp. 487 et seq.; Paulus 2009, p. 1121. See Greßmann and Staudigl 2016, p. 801; Hoven 2014, p. 357. 174 The majority considers the list to be non-exhaustive, see Clark 2010, p. 696; Kreß 2009, p. 1137; McDougall 2021, p. 128 et seq.; Zimmermann and Freiburg-Braun 2021, paras 99 et seq. For a contrary view, see Ambos 2010, p. 487. 175 See Section 7 no. 8 German Code of Crimes against International Law; Deutscher Bundestag 2002, p. 22; Satzger 2002, p. 130. For Austria, see Bühler and Reisinger Coracini 2015, p. 507. For the reasons why Article 8bis(2) of the ICC Statute is not comparable to Article 7(1)(k) of the ICC Statute, see McDougall 2021, p. 129. 176 Liechtenstein Institute on Self-Determination 2012, p. 17. Afghanistan may have expressed the view of an exhaustive list by deleting the generic definition and keeping the list, see Article 341(1) of the Afghan Criminal Code. 177 Moving the list to the explanatory memorandum expresses the view of the Austrian legislature that the list is considered to be merely illustrative, see Bühler and Reisinger Coracini 2015, p. 510. 178 See Kreß 2009, p. 1137. 179 Ibid.; Kreß 2017, p. 435; McDougall 2021, pp. 130 et seq. 173

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Cherry-Picking of the Listed Acts of Aggression

Slovenia modified the listed acts of aggression in its domestic definition.180 The “attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State”, provided by Article 8bis(2)(d) of the ICC Statute, was left out. Moreover, it limited the act of aggression mentioned in Article 8bis(2)(f) of the ICC Statute to situations in which Slovenia is the assisting State.181 Finally, it omitted the alternative of “substantial involvement” from the act provided by Article 8bis(2)(g) of the ICC Statute.182 The reasons for cherry-picking acts of aggression remain unclear. The listed acts of aggression originally from the annex to the UN General Assembly Resolution 3314 have received all sorts of criticism. The alternative of “substantial involvement” in littera (g) has been described as “unhappily worded”,183 littera (f) as “problematic because it covers state conduct that is more properly characterised as aid or assistance”.184

6.4.2.5

Inclusion of Violence of Non-State Actors

A significant modification in comparison to Article 8bis of the ICC Statute can be found in the Malabo Protocol which expands the concept of an “act of aggression” to the use of armed force by non-State actors.185 The Malabo Protocol does not constitute domestic implementation but aims to establish a regional counterpart to the International Criminal Court.186 However, State Parties of the African Union may be inspired by the definition of the crime of aggression under the Malabo Protocol and adopt respective implementing legislation. The exclusion of the use of armed force by non-State actors from Article 8bis of the ICC Statute was criticized for being “exceptionally antiquated”.187 It was criticized 180

See Article 103(2) of the Slovenian Criminal Code. See also Reisinger Coracini 2017, pp. 1047 et seq. 181 See Article 103(2) of the Slovenian Criminal Code: “…the action of the Republic of Slovenia in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state”. 182 See Article 103(2) of the Slovenian Criminal Code: “…the sending of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force of such gravity as to amount to the acts listed above”. 183 See Kreß 2017, p. 449. 184 Ibid., p. 446. See also Paulus 2009, p. 1121. 185 See Article 28M (B) Malabo Protocol: “State, group of States, or non-State actor(s) or by any foreign entity.” Ambos 2017, p. 50; Kemp 2017, pp. 254 et seq.; Reisinger Coracini 2017, pp. 1052 et seq. 186 The Malabo Protocol is the name used for the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights of 27 June 2014. It aims to establish a criminal chamber within the yet-to-be established African Court of Justice and Human and People’s Rights. See Werle and Jeßberger 2020, para 78. 187 Scheffer 2017, p. 84.

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in light of the prevalence of use of force by non-State actors188 and the developments of international law that broke with the traditionally State-centric configuration of the international legal order.189 The inclusion of violence of non-State actors in the Malabo definition constitutes “an African solution for an African problem”, to address the prevalent role of the non-State armed groups in conflicts in Africa.190 In comparison to the ICC Statute, the definition of the Malabo Protocol is overinclusive on the origin of the act of aggression. Domestic implementations of the Malabo definition may therefore not benefit from the advantages linked to the international nature of the crime of aggression, even if they fit better to the concerns of the region.

6.4.3 Modifications with Respect to the “Manifest” Threshold A component of the definition of the crime of aggression, which has led to modified implementation, is the “manifest” threshold for punishable use of force. Croatia, Estonia and Ecuador have omitted the term “manifest”.191 Germany has added “war of aggression” as a typical act of aggression that fulfills the “manifest” threshold.192 Most implementers, in contrast, closely mirrored the threshold of the parent norm.193 Article 8bis(1) of the ICC Statute sets up this threshold by only criminalizing an “act of aggression which by its character gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. “Manifest by its character” constitutes the qualitative dimension of the threshold clause. It excludes uses of force that fall in the legal grey area surrounding the prohibition of the use of force194 “whose legality under international law forms the object of genuine disagreement between reasonable international lawyers”.195 “Manifest by its gravity and scale” refers to the 188

For this critique, see, e.g., Cassese et al. 2013, p. 140; Ventura 2018, p. 389. For an overview of these developments, see Kreß 2010a. 190 Kemp 2017, p. 255. 191 See Article 89(1) of the Croatian Criminal Code; Section 91 of the Estonian Criminal Code; Article 88 of the Ecuadorian Criminal Code. 192 Section 13 of the German Code of Crimes Against International Law. 193 Including the implementations by copying and by reference, twelve implementers mirrored the “manifest” threshold. See Article 341 of the Afghan Criminal Code; Section 321k of the Austrian Criminal Code; Section 2 of the Cypriot Law 3(III)/2018 by reference to Article 8bis of the ICC Statute; Section 405a Czech Criminal Code; Chapter 11, Section 4a of the Finnish Criminal Code; Article 404 of the Georgian Criminal Code in conjunction with note n. 3; Section 321l of the Liechtenstein Criminal Code; Article 136quinquies of the Luxembourg Criminal Code; Article 8b of the International Crimes Act of the Netherlands; Article 403b of the North Macedonian Criminal Code; Section 7A of the Samoan International Criminal Court Act by reference to Article 8bis of the ICC Statute; Article 103 of the Slovenian Criminal Code. 194 Kreß 2017, pp. 510 et seq.; McDougall 2021, p. 156; Trahan 2011, pp. 59 et seq.; Zimmermann and Freiburg-Braun 2021, paras 69 et seq. 195 Kreß 2017, p. 524. Similarly, Barriga 2012, p. 29; McDougall 2021, p. 156. 189

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quantitative dimension of the threshold clause.196 It excludes uses of force which are not of sufficient intensity.197 Not all uses of force that violate the primary norm of the prohibition of the use of force reach the threshold of criminality.

6.4.3.1

General Criticism Raised Against the Parent Norm

In discussions unrelated to domestic implementation, the “manifest” threshold of Article 8bis(1) of the ICC Statute has been criticized for setting an “extremely restrictive standard”, which could undermine the underlying prohibition of the use of force.198 Moreover, it was criticized for its vagueness.199 Criticism against the “extremely restrictive standard”, in comparison to the underlying prohibition of the use of force, was already voiced during the drafting200 and the adoption201 of the definition of the ICC Statute. The concern was that the threshold clause would establish unlawful uses of force of two kinds: those worth being prosecuted and those not. This could ultimately undermine the underlying prohibition of the use of force.202 It could give State leaders a carte blanche to the use of armed force that violates the prohibition of Article 2(4) of the UN Charter but fails to reach the “manifest” threshold.203 The criticized vagueness of the “manifest” threshold is related to the principle of legality. This principle aims to provide foreseeability for the subject of the norm. Paulus, for example, explained that what “is obvious for one is completely obscure to the other” and described the “character” as being “so indeterminate that it is almost meaningless”.204 The criticism of the definition of the ICC Statute for being too vague, however, seems to be even sharper when it comes to its domestic implementation and the stricter domestic requirements of the principle of legality. This is why it deserves closer scrutiny.

196

Kreß 2017, p. 511. Ibid., p. 510; McDougall 2021, p. 157 et seq. 198 See, e.g., Paulus 2009, p. 1121. For a defense, see Ambos 2010, p. 485. 199 See Glennon 2010, p. 71; Murphy 2009, pp. 1150 et seq.; Paulus 2009, p. 1121; van Schaack 2011, p. 484. For a possible defense, see Heinsch 2010, pp. 726 et seq.; Kreß 2009; Milanovic 2012, pp. 170 et seq.; Weisbord 2011, pp. 108 et seq., 184. 200 For the concern about the threshold clause during the drafting process, see Barriga and Kreß 2011h, para 13: “It was argued that the clause was unnecessary because any act of aggression would constitute a manifest violation of the Charter of the United Nations.” See also Clark 2010, p. 697. 201 For statements by Cuba and Iran on the adoption of the Kampala Amendments, see Barriga and Kreß 2011i, pp. 814 et seq. 202 See also Barriga 2012, p. 29; Paulus 2009, p. 1124; Zimmermann and Freiburg-Braun 2021, para 51. 203 Heinsch 2010, p. 726; Paulus 2009, p. 1124; Zimmermann and Freiburg-Braun 2019, para 259. 204 Paulus 2009, p. 1121. 197

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Tensions with the Domestic Principle of Legality due to Vague Threshold?

The vague “manifest” threshold may require modifications to make the crime of aggression consistent with the domestic principle of legality.205 If Article 8bis(1) of the ICC Statute even received criticism for its vagueness from the international law perspective, tensions arise a fortiori from the domestic perspective and its commonly stricter understanding of the principle of legality. The rationales of the principle of legality explain why the “manifest” threshold may be problematic if implemented without modification into domestic law. The vagueness of “manifest” could make it difficult to foresee which acts of aggression are punishable, even for those who are legally trained or legally advised.206 This could reduce the deterrent function of criminal law given that the psychologically compelling effect of a law depends on its clarity. The use of such a vague term gives courts more discretion in deciding which uses of armed force are criminal. This may risk lowering the protection against State arbitrariness and could be perceived in certain States as a challenge for democracy, which requires the democratically elected State organ to define crimes as precisely as possible.207 The use of vague terms, equally known as “normative terms”, is not per se excluded as a legislative device in criminal law.208 The definition of a crime covers the typical wrong of criminal conduct. This is why an act of generalization cannot be avoided and is rather characteristic of offense definitions.209 The “manifest” threshold is such an act of generalization to cover the debatable exceptions to the prohibition of the use of force, beyond the clear cases of self-defense and the use of force authorized by the UN Security Council. It could also be assumed that the vague requirement of the “manifest” violation of the ambiguous field of ius ad bellum enhances its level of clarity.210 If it aims to exclude the grey areas surrounding the prohibition of the use of force, it focuses on clear instances of aggressive use of force.211 This is why the limitation to “manifest” or “evident” cases is a tool to ensure, and not prevent, compliance with the principle of legality. Glennon, however, fiercely objects to such a reasoning regarding the parent norm in the ICC Statute. He cynically asserts: “A statute permitting the prosecution of only clear-cut, blatant instances of ‘impropriety’ would still be vague.”212 In other 205

For a discussion of the compatibility of the Kampala definition of aggression with the principle of legality, see Broomhall 2021, para 59; Milanovic 2012. 206 See, in detail, Glennon 2010, pp. 88 et seq.; Paulus 2009, p. 1121. See also Cryer et al. 2019, p. 311. 207 For a similar reasoning at the international level, see Murphy 2009, p. 1152. 208 See Glaser 1942, p. 36. On normative and descriptive terms, see Roxin 2006, pp. 307 et seq. 209 See Roxin 2006, p. 173. In the same vein, Grover 2014, p. 142. See also Hassemer and Kargl 2017. Similarly, Ambos 2010, p. 484. 210 Similarly, Hoven 2014, p. 354. 211 Kreß 2011, pp. 160 et seq.; Kreß and von Holtzendorff 2010, p. 1200. 212 Glennon 2010, p. 101. For the same concern with respect to former Section 80 of the German Criminal Code, see Paeffgen 2017, para 9.

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words, a vague threshold does not lose its indeterminacy by requiring the threshold to be manifestly exceeded. However, ensuring compliance with the domestic principle of legality by a limitation to obvious violations is a common suggestion by German scholars. They suggested a limitation to obvious cases, when faced with the vague term of “war of aggression” in former Section 80 of the German Criminal Code,213 or with other domestic implementations of core crimes whose criminality depends on the violation of a vaguely contoured field of law.214 Article 8bis of the ICC Statute did not leave judges without any guidance on how to interpret the “manifest” threshold.215 The “manifest” threshold is flanked by the qualifiers of “nature, gravity and scale”. It is arguable whether the addition of three vague qualifiers makes the vague “manifest” threshold of the parent norm clearer.216 However, further interpretative aids are provided by the Elements of Crimes,217 the understandings to the Kampala Amendments,218 the travaux préparatoires219 and by literature.220 Kreß argued that it would be easier to apply the threshold contained in Article 8bis of the ICC Statute than to pinpoint the minimum requirements of a “widespread or systematic attack” or an “excessive attack”.221 States that mirror the “manifest” threshold create a domestic definition of the crime of aggression which is to be understood in light of the parent norm and numerous interpretative aids. This ensures more guidance for courts and norm subjects than an autonomous domestic definition of the crime of aggression. As to the qualitative dimension, Kreß contends that “reasonable international lawyers will find it comparatively easy

213

Gropengießer and Kreicker 2003, pp. 126 et seq.; 243 fn. 1011 with further references; Kreß 2003, pp. 308 et seq. Kühl 2014, para 2; Sonnen 1983, para 18. 214 Namely, the crime against humanity of forcible transfer or deportation.They recommend reading the German provision which requires someone to “deport or forcibly transfer…a person …in contravention of a general rule of international law” as demanding an “evident contravention” and not a “simple contravention” of a general rule of law. See Gropengießer and Kreicker 2003, pp. 126 et seq.; Meseke 2004, p. 288. 215 Similarly, Ambos 2010, pp. 484 et seq.; Milanovic 2012, pp. 170 et seq.; Weisbord 2011, pp. 108 et seq. 216 Murphy 2009, p. 1151. Paulus, for example, deplores that “character” is “so indeterminate that it is almost meaningless”, see Paulus 2009, p. 1121; see also Mancini 2012, p. 236. 217 See Elements of Crimes for Article 8bis of the ICC Statute, Introduction, num. 3 and 4 which further nuance the “manifest” threshold, clarifying that it is an “objective qualification” and that there is “no requirement that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the Charter of the United Nations”. 218 Review Conference of the Rome Statute 2010, Annex III, Understandings 6 and 7. Understanding 6 emphasizes that aggression is “the most serious and dangerous form of illegal use of force” and requires “consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences”. Understanding 7 is read as a clarification that character, gravity and scale must be understood as cumulative conditions. 219 Barriga and Kreß 2011a. 220 See, e.g., Cryer et al. 2019, p. 310 et seq.; Kreß 2017, p. 510 et seq.; McDougall 2021, p. 154 et seq. 221 See Kreß 2009, p. 1145.

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to identify those instances of the use of force which fall within the grey area”.222 The quantitative dimension requires the use of force of a certain intensity. It takes into account the spatial and temporal dimension of the use of force, the number of casualties on all sides, the scope of the disturbance of common life within the victim State and the level of property destruction on all sides.223 The interpretation of these three qualifiers provides domestic courts with a clear set of factors to take into account when assessing the “manifest” threshold in light of the parent norm of the ICC Statute. From the perspective of the subjects of the norm, the “manifest” threshold is better contoured by the three qualifiers and the interpretative aids. This allows State leaders, at least after consulting legal advisors, to foresee which military interventions risk to give rise to criminal responsibility. Requiring a more specific definition to protect individuals against State arbitrariness may disregard the legal context of the crime of aggression.224 Under domestic law, the requirements of the principle of legality may be attenuated to what it is practically possible, considering the particularities of the field the crime covers.225 A complex subject matter may require a complex legislative answer.226 The reduced precision of the definition of the crime of aggression is a reflection of the ambiguity of the underlying ius ad bellum. Scholars doubted whether more precision could be achieved without abandoning the project altogether.227 Even before Kampala, the possibility of an “an iron-clad definition of aggression” was contested.228 It was not without reason that it took more than half a century to finally come up with a definition after the Nuremberg trials. Admittedly, States Parties discussed whether a definition could provide more legal certainty through a “collective intent” to establish an occupation or to annex.229 However, it was not “overly realistic to expect that a magic formula of a specific collective intent requirement would shortly emerge which would command universal support”.230 States, in contrast, have in principle more freedom under domestic law and can adopt a definition without requiring other States to agree. They can opt for such an additional collective intent requirement, if they are of the view that it enhances the legal certainty of the domestic definition. However, the international law-friendly approach of domestic constitutions may warrant against a too rigid reading of the 222

See ibid., p. 1140. Namely: anticipatory self-defense, forcible reactions to a “minor” use of force of another State, armed interventions to rescue nationals, the extraterritorial use of force against a massive non-State armed attack, and genuine humanitarian intervention. See also Cryer et al. 2019, pp. 307 et seq.; Zimmermann and Freiburg-Braun 2019, paras 181 et seq. 223 Kreß 2017, p. 520. 224 Similarly, Hoven 2014, p. 351. 225 Papier and Möller 1997, p. 185 et seq., 200; Darge 2010, p. 234. See also the position of the German Federal Constitutional Court, Decision, 26 September 1978, BVerfGE 49, 168, 181. 226 Towfigh 2008/2022, p. 14. 227 Ambos 2010, pp. 483 et seq.; Kreß 2009, pp. 1140; Kreß and von Holtzendorff 2010, p. 1211. 228 See Kittichaisaree 2001, p. 217. See also Schuster 2003, p. 50. 229 See Heinsch 2010, p. 724; Kreß 2009, p. 1136; Kreß 2017, p. 532. 230 Kreß 2009, p. 1144.

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principle of legality whenever States implement norms from international law.231 Where a crime of aggression lacks a collective intent, the International Criminal Court could intervene and prosecute the individual based on the definition of ICC Statute. As we will see, only Germany explicitly justified its modified implementation by the principle of legality.232 Most States, in contrast, mirrored the threshold of the parent norm.233 Given that Article 8bis of the ICC Statute received criticism for being vague, this is noteworthy. It ultimately confirms that States Parties did their best to describe with sufficient clarity a crime which is based on violations of a field for law that is known for its ambiguities.

6.4.3.3

Omission of “Manifest”

Three out of 16 implementers have definitions that do not require the violation of the UN Charter to be “manifest”.234 The reasons are not always clear. For unintentional deviations, national courts could still read the “manifest” threshold into the domestic definition. Croatia: Omission of “Manifest” but three Qualifiers Croatia omits the adjective “manifest” in the domestic definition of the crime of aggression.235 The Croatian provision otherwise mirrors Article 8bis(1) of the ICC Statute and requires “an act of aggression which, by its character, gravity and scale, constitutes a violation of the Charter of the United Nations”. This is why Turkovi´c and Munivrana Vajda assume that the word “manifest” was probably left out by mistake.236 This is also suggested by the lack of coherence between the omission of “manifest” and the Croatian statement at the Assembly of States Parties in 2013. Croatia asserted that “[t]he new Croatian Criminal Code adopted in 2011, already introduced the definition of the crime of aggression in accordance with the Kampala definition”.237 The Croatian legislature has not clarified this uncertainty as of 2022. Considering a seemingly unintentional deviation from the international standard, Croatian Courts could still read the “manifest” threshold into the domestic norm. Such a reading would ensure the telos of making domestic law consistent with the ICC Statute definition. 231

See Werle and Jeßberger 2002a, p. 730. In the same vein, see Meseke 2004, p. 279; Satzger 2004, pp. 945 et seq. For a more skeptical view, see Kuhli 2010, pp. 169 et seq. 232 Deutscher Bundestag 2016, p. 19. 233 Including the implementations by copying and by reference, 12 implementers mirrored the “manifest” threshold. These are: Afghanistan, Austria, Cyprus, the Czech Republic, Finland, Georgia, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. 234 Namely Croatia, Estonia and Ecuador. 235 See Article 89(1) of the 2011 Croatian Criminal Code. 236 Turkovi´ c and Munivrana Vajda 2017, p. 871 fn. 48. In the same vein, Reisinger Coracini 2017, p. 1048, whereby the omission was probably a mistake that will soon be corrected. 237 See Croatia 2013.

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Estonia: Omission of “Manifest” but Different Legislative Intent Another contradictory omission of the threshold clause can be found under Estonian law. Section 91(1) of the Estonian Criminal Code defines as a crime of aggression the “participation in the leading, execution or preparation of an act of aggression… or threatening with an act of aggression”. Section 91(3) of the Estonian Criminal Code describes the act of aggression as “the use of armed force by one State against another State in violation of international law”. It suggests that an ordinary violation of international law suffices for a punishable use of armed force. The first version of the definition proposed by the Estonian Ministry of Justice still contained the “manifest” threshold.238 While this suggests a deliberate departure from the parent norm, the justification for changing the text was curiously to bring it into accordance with Article 8bis of the ICC Statute.239 Under the presumption that the legislative branch intended to criminalize aggression in line with Article 8bis of the ICC Statute, Estonian courts could engage in teleological interpretation and read the threshold clause into the domestic provision. Ecuador: Limitation to the Exceptions “Foreseen in the Charter” Article 88 of the Ecuadorian Criminal Code criminalizes “an act of aggression or an armed attack against the territorial integrity or the political independence of the State of Ecuador or another State, except in the cases foreseen in the Charter of the United Nations”. The wording suggests a lower threshold for the punishable use of armed force. The threshold of criminality is that of an “act of aggression”, or “armed attack”, and the possibility of avoiding criminal liability is restricted to cases foreseen in the UN Charter. The “manifest” threshold of Article 8bis of the ICC Statute, in contrast, excludes more cases than those foreseen in the UN Charter. It excludes those within the “grey area surrounding the prohibition of the use of force”. The Ecuadorian omission of this threshold thus leads to an over-inclusive definition compared to its parent norm in the ICC Statute.240 It reduces the gap between the act and the crime of aggression. Reisinger Coracini assumes this deviation to be deliberate.241 The reasons behind this deliberately lower threshold of criminality, however, remain unclear. The statement of the general legislative motives to the criminal code gives a hint. It refers to the desire to adjust the national law to international compromises.242 It notes that where the offense definitions of international instruments are open and imprecise, the definitions inserted in the Ecuadorian Criminal Code were designed to 238

See Estonian Ministry of Justice 2013, para 1 no. 46. Parmas 2017, p. 907. Parmas 2017, p. 908. See also Estonia 2014, at 3.2.2. whereby the wording of the provision is supposed to be based on the amendments of the ICC Statute and the replacement of “war of aggression” in former Section 91 by “act of aggression” motivated by the previous lack of congruity between the Estonian Penal Code and the ICC Statute. 240 In the same vein, Reisinger Coracini 2017, p. 1048. 241 Ibid. 242 Ecuadorian Criminal Code of 2014 [Código orgánico integral penal], title of para 5: “Adecuación de la normativa nacional a los compromisos internacionales”. 239

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consider constitutional guarantees, the effectiveness of the fight against crime, and the precision of the elements of the offense definition.243 It is debatable whether the Ecuadorian provision enhances the precision of the norm by requiring an “act of aggression”, or of the almost synonymous “armed attack”.244 Both terms imply a certain threshold, in comparison to “simple” violations of Article 2(4) of the UN Charter.245 The mere exclusion from criminality of “cases foreseen in the Charter of the United Nations” may render the fight against impunity more effective, or at least more likely. It broadens the scope of the crime of aggression. This could prevent the crime from becoming a “lettre morte or, at best, symbolic in nature”.246 In that regard, the Ecuadorian provision could be perceived as a response to the criticism of the “extremely restrictive standard”247 of the “manifest” threshold. Nonetheless, there is a general risk of broadening the understanding of the punishable uses of armed force. The recent Russian invasion of Ukraine also shows that the international community was too optimistic when criticizing the “manifest” threshold regarding the modern use of force. The crime of aggression did not remain a lettre morte. Risk of Broader Understanding of Punishable Use of Armed Force Omitting the “manifest” threshold risks failing to reflect the core wrong of the crime of aggression. The crime of aggression only captures a subset of the violations of the primary norms of the ius ad bellum.248 The requirement of a “manifest” violation has been defended “to stress the difference between the act and crime of aggression and to avoid its trivialization”.249 Limiting criminality to a subset of the violation of the primary norm also corresponds to the general structure of other crimes under international law, such as war crimes.250 Past practice shows that this limitation does not undermine the primary norms under international humanitarian law. From a legal and political perspective, the domestic level is not the right place to lower the threshold of criminality for a crime based on a State act. The legitimacy of the definition under international law gives States, as an agent of the international community, the power to address the violations of its fundamental values. The international nature of the crime of aggression is key to overcoming obstacles, such as functional immunities, whenever States prosecute foreign aggressors.251 From a political perspective, the “manifest” threshold helps to prevent courts from deciding controversial borderline cases. This has been raised when discussing the definition 243

Ecuadorian Criminal Code of 2014 [Código orgánico integral penal], para 5. On the distinction, see Nolte and Randelzhofer 2012, para 17; Ruys 2010, pp. 127 et seq. See also Dinstein 2017, para 549. 245 On the threshold, see Akande and Tzanakopoulos 2017, pp. 220 et seq. 246 Zimmermann and Freiburg-Braun 2019, para 259. 247 See, e.g., Paulus 2009, p. 1121. 248 See Chap. 3, Sect. 3.6.2. 249 See Ambos 2010, p. 484 et seq.; Hoven 2014, p. 354. 250 See Werle 2010, p. 1225 et seq.; Werle and Jeßberger 2020, para 1180. See also Heinsch 2010, p. 731; Stahn 2019, p. 101; Zimmermann and Freiburg-Braun 2021, para 51. 251 See Chap. 8, Sect. 8.4.6.2. 244

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for the purpose of prosecutions by the International Criminal Court.252 On the interstate level, it is problematic to prosecute cases that are not based on a definition hypothetically supported by the majority of States, namely those that participated in the Kampala Conference.

6.4.3.4

Addition of “War of Aggression” in the German Definition

Germany has adopted a potentially under-inclusive provision. It includes “war of aggression” as an example of an act of aggression which reaches the “manifest” threshold of criminality. Section 13(1) of the German Code of Crimes against International Law punishes “[w]hosoever wages a war of aggression or commits another act of aggression which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations”. The purpose of including “war of aggression” is twofold: the integration in the existing body of domestic law and defusing the tension with the strict understanding of the principle of legality under German law.253 Regarding the desired integration, the relevant provisions from the existing body of domestic law were two provisions that became part of the German legal order in response to its responsibility for two World Wars. These are former Section 80 of the German Criminal Code, which criminalizes the preparation of a war of aggression, and Article 26 of the German Constitution, which obliges to criminalize, inter alia, wars of aggression.254 The inclusion of the term “war of aggression” in Section 13(1) of the German Code of Crimes Against International Law pays linguistic deference to both provisions. The subject matter of the constitutional obligation of Article 26 of the German Constitution, however, is broader.255 It would not have required to preserve “war of aggression” in the crime’s definition.256 Adding the notion of “war of aggression” to the more neutral language of the Kampala definition serves a symbolic function as a constant reminder of Germany’s past.257 The second reason given for preserving “war of aggression” in the new definition deserves closer scrutiny. It is said to enhance the level of legal certainty. The addition of a “war of aggression” as a guiding example of a punishable act of aggression should give courts and norm subjects a better idea of what can fulfill the “manifest” threshold.258 252

Barriga 2012, p. 29; Barriga and Kreß 2011f, para 19; Barriga and Kreß 2011h, para 13. Deutscher Bundestag 2016, p. 16. Jeßberger 2018, pp. 188 et seq. 254 Deutscher Bundestag 2016, p. 16. 255 Classen 2017, para 27; Sonnen 1983, para 2. 256 See also Kreß 2016, p. 4. According to Article 26 of the German Constitution, “[a]cts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression” shall be criminalized. As the use of the term “especially” demonstrates, acts tending to prepare for a war of aggression are only examples of such peace-disturbing acts. 257 See Deutscher Bundestag 2016, p. 16, whereby the terminology serves to express Germany’s historic responsibility for two world wars. 258 Ibid. 253

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However, the term “war of aggression”, as used in former Section 80 of the German Criminal Code, was already criticized for being imprecise,259 or a “nondefinition”.260 This raises the question of how such a term can enhance clarity in the new German provision. One explanation is that the inclusion of “war of aggression” invites courts to resort to the existing jurisprudence generated after World War II for comparative reason. Since there is no precedent in history of the prosecution of crimes of aggression, as defined in Article 8bis of the ICC Statute, the jurisprudence on “wars of aggression” offers a good orientation and reduces the risk of arbitrary decisions.261 Apart from allowing recourse to valuable case law, the term “war of aggression” could also lead to a more restrictive reading of the German implementation. Under the former German provision, “war of aggression” was understood as involving an aggressive collective intent, such as to annex or subjugate foreign territory.262 This corresponds to the understanding of wars of aggression, as inferred from the postWorld War II jurisprudence.263 Moreover, it roughly corresponds to the proposal made by Germany264 during the drafting process of Article 8bis of the ICC Statute to add a collective intent requirement.265 The proposal was to define the collective part of the crime of aggression as “an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations and amounts to a war of aggression or constitutes an act which has the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof”.266 Does the addition of “war of aggression” implicitly lead to a definition at the domestic level that was rejected at the international level?267 Alternatives mentioned in one provision, and subject to the same penalty, normally need to be equivalent in gravity due to the principle of culpability. A systematic interpretation could thus suggest a collective intent for all alternatives.268

259

See Paeffgen 2017, para 2; Schroeder 1969, p. 45; Steinhausen 1969, p. 129; Wilkitzki 1987, p. 466. 260 Kaul 2013, p. 229. 261 However, domestic courts are not prevented from resorting to the Nuremberg and Tokyo jurisprudence for interpretative purposes, even without the linguistic connector of “war of aggression”. See Kreß 2016, p. 6. 262 Classen 2017, para 27; Kühl and Heger 2014, para 2; Laufhütte and Kuschel 2007, para 6. 263 Werle and Jeßberger 2020, para 1597. 264 Germany made several proposals during the drafting process which tried to define the narrow scope of the Nuremberg precedent more precisely. See Barriga and Kreß 2011b. See option 1, in Barriga and Kreß 2011c, p. 412, para 1. 265 See Kreß 2017, p. 532; see also Barriga 2012, p. 11, 25. 266 See option 2 in Barriga and Kreß 2011c, p. 412. See also Barriga 2012, p. 11. 267 It was rejected by the overwhelming majority of delegations for being too restrictive, see Kreß 2017, p. 532; Barriga and Kreß 2011f, p. 500, paras 25 et seq. 268 For a contrary conclusion after a systematic interpretation of the German provision, see Kreß 2016, pp. 5 et seq. who argues that alternatives need to have an independent field of application which could ultimately lower the quantitative requirements for other punishable acts.

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It seems, however, as if the addition of “war of aggression” was not intended to modify the otherwise Kampala-like definition under German law.269 In a conciliatory tone, the German government stated that “war of aggression” serves as a guiding example of a punishable act of aggression.270 The intent to annex foreign territory, or to subjugate a State, is only characteristic of uncontroversial cases of crimes of aggression.271 It is not characteristic of all crimes of aggression. This is why it can be assumed that the addition of “war of aggression” served only illustrative purposes. It did not implicitly make the collective intent requirement part of the crime of aggression definition. As an illustration, it cannot be criticized for being a non-definition. The definition of punishable acts of aggression is provided by the replicated “manifest” threshold from the ICC Statute. As a well-known example from German history, it may be argued that such an illustration makes it easier for272 subjects and appliers of the German norm to understand its essence and thereby enhances its level of legal certainty. The German addition of “war of aggression”, as an example of a punishable act of aggression, does not lead to an under-inclusive implementation of the “manifest” threshold of the parent norm. It does not aim to substantively modify the “manifest” threshold. In that regard, it succeeds in balancing expressing commitment to the ICC Statute and considering national legal culture.273 It pays linguistic deference to provisions that are reminiscent of Germany’s past. It also attempts to better fulfill the stricter requirements of the German principle of legality by a guiding example of a punishable act of aggression. This path taken by Germany, however, is not universally transferrable to other States. It is understandable to add the term “war of aggression” for symbolic reasons in a State with a unique history in terms of aggression. Estonia, victim of aggression by the Soviet Union in 1940 and 1944, however, took the opposite decision. The Estonian implementation of the Kampala definition did not pay linguistic deference to the former provision criminalizing “war of aggression”. It was argued that “the concept of war has been replaced under international law after World War II by other, more flexible ones: use of armed force, act of aggression, armed conflict”.274

269

For the same assumption, see Jeßberger 2018, p. 188. Deutscher Bundestag 2016, pp. 16 et seq. 271 Ibid. 272 On the general legislative endeavor to strike a fair balance between abstraction and casuistic perfectionism, see Ent 1982, p. 68; Müller 1968, p. 76 et seq.; Noll 1973, p. 264 et seq. 273 Werle and Jeßberger 2020, para 474. 274 See Estonia 2014, at 3.2.2. See also Parmas 2017, p. 899. For an in-depth discussion of the declining concept of “war” in international law, see Greenwood 1987. 270

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6.4.4 Modifications with Respect to the Leadership Clause The leadership clause of the crime of aggression under the ICC Statute has been modified by four implementers.275 The leadership clause is enshrined in Article 8bis(1) of the ICC Statute. It states that a crime of aggression can only be committed by “a person in a position effectively to exercise control over or to direct the political or military action of a State”. Being in such a position is also required from mere accessories of the crime due to Article 25(3bis) of the ICC Statute. It transfers the leadership clause to all modes of participation, meaning principal perpetrators and accessories alike.276 Due to this “absolute leadership requirement”,277 participants who are not in a position of effective control or direction (extranei), are exempt from criminal responsibility. In concreto, this exempts, for example, soldiers or mid-level officers who were merely executing the act of aggression, without having effective control or direction.278 It also excludes the bureaucrat who assists in planning the invasion, without belonging to the top leadership circle. These persons would have otherwise fallen into the general system of participation of the ICC Statute. This system does not require participants to fulfill the requirements of perpetration, such as special personal qualifications or genocidal intent.279 The exemption of these extranei and the focus on intranei, meaning those in a position of effective control or direction, was the intention States voiced during the drafting of the crime of aggression.280

6.4.4.1

General Criticism Raised Against the Parent Norm

The leadership nature of the crime of aggression can rely on a consensus of States Parties,281 as well as scholars,282 and is reflected in the jurisprudence of the postWorld War II trials.283 Nonetheless, the wide exemption of responsibility covering everyone who does not belong to the leadership circle has been described as “highly questionable”.284 The wide exemption is criticized for not “telling the whole story” 275

Namely Austria, Croatia, North Macedonia and Liechtenstein. Ambos 2021, para 54. 277 Drumbl 2009, p. 314. Under German criminal law, this is called an “absolute crime of special qualification” (absolutes Sonderdelikt), see Jeßberger 2018, p. 195. 278 Ambos 2010, p. 491. 279 On the different requirements for accessories, see Werle and Jeßberger 2020, paras 665, 678. 280 Barriga and Kreß 2011g, para 11. See also Barriga and Kreß 2011e, para. 19. 281 Kreß 2007, p. 855; Zimmermann and Freiburg-Braun 2019, para. 78. 282 See Ambos 2022, p. 240; Cassese et al. 2013, p. 141; Cryer et al. 2019, p. 303; Kemp 2017, p. 180; Werle and Jeßberger 2020, paras 1592 et seq. 283 See Werle and Jeßberger 2020, para 1592. For a comparative analysis of the “shape or influence” criterion of the post-World War II trials and the “effective control or direction” threshold of the ICC Statute, see Hajdin 2017; Heller 2007. 284 Ambos 2010, p. 492. See also Drumbl 2009, pp. 313 et seq.; Chehtman 2018; Fabre 2016, p 191. 276

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and for neglecting the importance of the joint collective effort required for a crime of aggression.285 It is claimed that the collectivization of innocence on individuals in aggressive war would create “an odd set of incentives” to partake in the war effort because non-leaders would never be criminally responsible for their conduct”.286 Some of the “revisionists” of the philosophy of war claim that ordinary combatants should be punished if they meet the appropriate mens rea to legally reflect their moral responsibility.287

6.4.4.2

Inclusion of Persons Outside the Leadership Circle

At least four implementers deviate from the leadership requirement as found in Article 8bis and Article 25(3bis) of the ICC Statute.288 They create a paragraph that explicitly criminalizes the participation of any person in the act of aggression. Alternatively, they apply the general rules of participation of the domestic criminal code to the crime of aggression without including the leadership clause. As a result, the domestic version of the crime of aggression is a delictum communium and not an absolute leadership crime. The reasons for these over-inclusive implementations are not always clear. At least the Croatian legislature seems to have responded to the criticism raised against the parent norm by the modified implementation.289 Croatia and North Macedonia: Explicit Criminalization of Those Taking Part in the Collective Act Croatia and North Macedonia created provisions that explicitly depart from their international parent norm.290 Paragraph 1 of Article 89 of the Croatian Criminal Code is consistent with the Article 8bis of the ICC Statute by including the leadership requirement in the definition of the crime of aggression.291 Paragraph 2, however, 285

Drumbl 2009, p. 314, who favors the inclusion of mid-to upper-level ranks as it promises a “broader narrative with heightened didactic potential”. Similarly, Turkovi´c and Munivrana Vajda 2017, p. 867. See also Cassese et al. 2013, p. 141, who does not favor the inclusion of persons outside the leadership circle but still notes that the crime of aggression “is never perpetrated by single individuals acting severally; instead, it always results from some sort of collective action of a plurality of persons”. 286 Drumbl 2009, p. 316. 287 See Fabre 2016, Chapter 7, see 191; Chehtman 2018, p. 182. 288 Namely Croatia, North Macedonia and probably implicitly Liechtenstein and Austria, see Bühler and Reisinger Coracini 2015, p 510. Reisinger Coracini even assumes a deviation under Samoan law is due to the lacking reference to Article 25(3bis) of the ICC Statute, see Reisinger Coracini 2017, p. 1045. 289 See Turkovi´ c and Munivrana Vajda 2017, p. 867 who argue that by criminalizing the participation of extranei the Croatian legislator thereby “acknowledged that the crime of aggression cannot be committed without the participation of many subordinate perpetrators, in particular soldiers of the invading army”. 290 See Turkovi´ c and Munivrana Vajda 2017, p. 867. 291 See Article 89(1) of the Croatian Criminal Code: “Whoever, being in a position effectively to exercise control over or to direct the political or military action of a State...”

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provides for punishment of “[w]hoever takes part in the operations of the armed forces referred to in paragraph 1”. According to Turkovi´c and Munivrana Vajda, the Croatian legislature decided to “follow the logic of other international crimes and the tradition of incriminating subordinates taking part in their commission” and “acknowledged that the crime of aggression cannot be committed without the participation of many subordinate perpetrators, in particular soldiers of the invading army”.292 This seems to reflect the criticism raised against the complete exclusion of non-leaders from the scope of the parent norm. Article 403b of the North Macedonian Criminal Code, with wording almost identical to the Croatian implementation, follows the same pattern. It includes the leadership clause in the definition of the crime in paragraph 1,293 but criminalizes in paragraph 2 “[w]hoever participates in the actions of the armed forces referred to in paragraph (1)”. By imposing a lesser punishment for extranei, however, both implementations emphasize their lower level of responsibility compared to those fulfilling the leadership clause.294 As Turkovi´c and Munivrana Vajda rightly pointed out, even without this explicit extension of the scope of the crime of aggression to non-leaders, extranei could have still been held responsible under Croatian law pursuant to the general rules of participation.295 The unmodified application of the general rules of participation is the reason why the Austrian and Liechtenstein implementations lead to the inclusion of non-leaders. Austria and Liechtenstein: Unmodified General Rules of Participation The extension of the scope of the crime of aggression to extranei, persons outside the leadership circle of a State, can occur if domestic implementations do not mirror Article 25(3bis) of the ICC Statute. This article extends the leadership clause to the general rules on participation under the ICC Statute. Without the implementation of Article 25(3bis) of the ICC Statute, the rules of participation under domestic law tend to provide for accessorial liability, even if the accessory does not fulfill a special personal qualification.296 The fact that the special qualification of the intraneus suffices to drag the participant into criminality is precisely an expression of accessorial liability. This means liability which is accessorial or dependent upon the principal perpetrator.297 Under German law, for example, the fact that the accessory

292

See Turkovi´c and Munivrana Vajda 2017, p. 867. See Article 403 b(1) of the North Macedonian Criminal Code: “Whosoever, having the real power to monitor or govern the political or military actions of the State...” 294 See for the Croatian implementation, Turkovi´ c and Munivrana Vajda 2017, p. 867. 295 Turkovi´ c and Munivrana Vajda 2017, p. 867. 296 See, e.g., under German law Section 28(1) of the German Criminal Code and Roxin 2006, p. 340; Chapter 5, Section 7(2) of the Finnish Criminal Code. See also Reisinger Coracini 2017, p. 1045 whereby under many national criminal codes, a person that does not possess a specific quality can still be as a (secondary) participant, even if they cannot be the principal perpetrator. 297 On accessorial liability, see Steininger 2018, paras 9 et seq. See also Fletcher 2000, pp. 634 et seq.; Klesczewski 1998, pp. 21 et seq. 293

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lacks the special personal qualification normally leads to the mitigation of punishment but not to impunity.298 The lacking special personal qualification only affects the question of “how” but not “if” the extraneus is to be punished.299 The Austrian and Liechtenstein300 deviations from the parent norm occurred precisely due to the unmodified application of the general rules of participation. They include the leadership clause in their domestic definition of the crime of aggression but abstain from mirroring Article 25(3bis) of the ICC Statute in a modification of their general rules of participation.301 Austria’s and Liechtenstein’s explanatory memoranda emphasize that the crime of aggression is a “crime of special qualification related to the wrongfulness” (unrechtsbezogenes Sonderpflichtdelikt).302 The perpetrator has to be in the position effectively to exercise control over or to direct the political and military action of the State (intraneus).303 The punishment for extranei is only excluded if no intraneus participates in the crime.304 This corresponds to the general rules applicable to crimes qualified as unrechtsbezogenes Sonderpflichtdelikt.305 The extranei’s lack of the special qualification is only a ground for mitigating the punishment, not for impunity.306 Consequently, persons who do not have a position of effective control or direction (extranei) can be punished under Austrian and Liechtenstein law for participating in a crime of aggression.307 This is why Bühler and Reisinger Coracini conclude that the Austrian implementation of the crime of aggression intentionally goes beyond the personal scope of application of its parent norm in the ICC Statute. The Liechtenstein implementation, based on the identical explanation, could be understood in the same way.

298

In case the “special personal qualification” is constitutive for the crime (Section 28(1) of the German Criminal Code) and does not only aggravate, mitigate or exclude punishment (Section 28(2) of the German Criminal Code). See Jakobs 1991, pp. 688 et seq. For a contribution in English, see Bohlander 2009, pp. 173 et seq. 299 Puppe 2008, pp. 511 et seq. 300 The Austrian Criminal Code traditionally serves as a model for the Liechtenstein Criminal Code, see Government of Liechtenstein 2018, p. 5. This is why the Austrian and Liechtenstein implementations are almost identical, both in terms of the provisions as well as the explanatory memorandum. Austria implemented the crime of aggression into domestic law in 2015, Liechtenstein in 2019. 301 See Section 321k Austrian Criminal Code; Section 321l Liechtenstein Criminal Code. 302 Austrian Government 2015, p. 44; Government of Liechtenstein 2018, p. 264. 303 Ibid. 304 Ibid. 305 For holding someone responsible for the participation in crimes that require a special qualification (“Sonderpflichtdelikt”), the person must either fulfill the special qualification (intraneus) or there must be a provision that extends criminality to those that lack the special qualification (extraneus). Section 14(1) of the Austrian Criminal Code and the identical Section 14(1) of the Liechtenstein Criminal Code are such provisions. Section 14(1) of both Criminal Codes apply to so-called “crimes of special qualification related to the wrongfulness” (“unrechtsbezogenes Sonderpflichtdelikt”), which was the categorization given to the crime of aggression. See Fuchs 2008, pp. 325 et seq. 306 Gerhold 2018, p. 952; Weißer 2011, p. 318. 307 Bühler and Reisinger Coracini 2015, p. 510.

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The punishment of persons outside the leadership circle is excluded under German and Finnish law. To avoid extension to non-leaders due to the application of the general rules of participation, the German and Finnish legislatures modified this aspect when implementing the crime of aggression. Section 13(4) of the German Code of Crimes against International Law clarifies that “[o]nly a person who is in a position to effectively exercise control over or to direct the political or military action of a State may be subject to criminal liability under subsections (1) and (2).” This means that all modes or participation, including accessorial criminal liability, need to fulfill the leadership clause.308 The Finnish implementation achieves the same result by declaring to not apply the provision which normally only mitigates punishment for accessories if the accused lacks the “special circumstance related to the person”.309

6.4.4.3

Risk of Including Persons Outside the Leadership Circle

The extension of the personal scope of the crime of aggression under domestic law to non-leaders may increase the practical relevance of this norm. The leadership clause normally limits criminality to high-profile persons whose prosecution faces political and legal obstacles. Even without the leadership clause, an inherent limitation exists due to the mens rea required for accessorial criminal responsibility. Most ordinary combatants, for example, who objectively participate in a crime of aggression may lack the mens rea.310 Due to disinformation, Russian combatants who participate in the invasion of Ukraine may not be fully aware of the factual circumstances that establish a manifest violation of the UN Charter. Deliberate domestic extensions to persons outside the leadership circle of a State risk ignoring the nature of the crime of aggression as a leadership crime. As elaborated in Chap. 3, the limitation of criminality to persons from the leadership circle is a consequence of the collective nature of the crime of aggression.311 It reflects the typical ability of such leaders to trigger State conduct relevant in the field of ius ad bellum.312 It also avoids mass punishment313 and retains the incentive to comply with international humanitarian law for ordinary combatants who execute the State act of aggression.314 While the exclusion of ordinary combatants may incentivize them to 308

Jeßberger 2018, p. 195. See Chapter 11, Section 14a of the Finnish Criminal Code: “When applying sections 4 a [crime of aggression] and 4 b, section 7, subsection 2 of Chapter 5 shall not be applied to an inciter and abettor.” 310 This is actually the claim made by the so-called “revisionists” of the philosophy of war, see Chehtman 2018, pp. 182, 186, who asserts that “only those participating in a knowingly or manifestly unjust war would be liable to be punished” but notes at the same time that most participants “would generally lack the relevant mens rea”. 311 See Chap. 3, Sect. 3.6.3. 312 Ambos 2022, p. 240. 313 For a similar concern, see Dinstein 2017, para 408; Jescheck 1952, p. 408. 314 Kreß 2009, p. 1134. 309

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partake in the war effort, according to Drumbl, it may also incentivize them to retain this impunity by adapting their conduct during war to international humanitarian law. Considering that ordinary combatants are in the direct position to commit war crimes, but unable to make decisions on war and peace, increasing their incentive for complying with international humanitarian law deserves priority.

6.4.5 Modification with Respect to the Individual Conduct The individual conduct of Article 8bis of the ICC Statute is another component of the definition which has led to modified implementation. According to Article 8bis(1) of the ICC Statute, the individual conduct can consist of the “planning, preparation, initiation or execution” of an act of aggression.315 States Parties opted for a description of the individual conduct which largely builds on the formula used in the Charter of the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East.316 Due to a clarification in the Elements of Crime for Article 8bis of the ICC Statute, individual conduct at the early stages of planning or preparing an act of aggression only gives rise to individual criminal responsibility if the act of aggression actually took place.317

6.4.5.1

General Criticism Raised Against the Parent Norm

After the Kampala Conference, the drafters of Article 8bis of the ICC Statute were criticized for relying on the Nuremberg and Tokyo precedent instead of “using the opportunity to start a principled discussion with a view to achieving improved codification”.318 Although there was a “cumbersome search” for an innovative and more concise conduct verb,319 States ultimately resorted to the agreed language from Nuremberg and Tokyo to narrow the scope for disagreement.320 315

On the meaning of the different individual conduct, see McDougall 2021, pp. 236 et seq.; Zimmermann and Freiburg-Braun 2021, paras 23 et seq. 316 See “planning, preparation, initiation or waging of a war of aggression” in Article 6(a) of the IMT Charter; Charter of the International Military Tribunal for the Far East, Directive of Douglas MacArthur, 19 January 1946 (IMTFE Charter), Article 5(a). On the understanding of the modes of action provided by the post-World War II tribunals, see McDougall 2017, pp. 85 et seq. The term “waging of a war of aggression” was replaced by the synonymous “execution” to better fit to the more neutral term “act of aggression”. See McDougall 2021, p. 238; Zimmermann and Freiburg-Braun 2021, para 21. 317 See Elements of Crimes for Article 8bis of the ICC Statute, num. 3. See Kreß and von Holtzendorff 2010, p. 1200. 318 Ambos 2010, pp. 493 et seq. 319 See Barriga 2012, p. 22. Among the terms at the negotiating table were “commit”, “engage”, “ordering and participating”, “directing”, see Clark 2017, pp. 575 et seq. See also Barriga and Kreß 2011d, pp. 473 et seq. 320 McDougall 2021, p. 235.

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Another criticism concerns the interplay between the four action verbs and the general part of the ICC Statute, such as Article 25(3) of the ICC Statute, which sets out the modes of participation at the international level and criminalizes attempt.321 For example, the conduct of “initiating” an act of aggression under Article 8bis of the ICC Statute normally corresponds to the conduct of attempting a crime under Article 25(3)(f) of the ICC Statute. The former, however, is only criminalized if the act of aggression occurred,322 the latter does not require the crime of aggression to be committed. The question of avoiding friction between the general part and the crime of aggression equally arises for domestic implementations. States Parties to the ICC Statute faced difficulties agreeing on a description of individual conduct that gives enough insight into the punishable conduct and does not provoke friction with the general part of the ICC Statute. Domestic implementations faced similar problems. While most implementers mirrored the four conduct verbs of Article 8bis of the ICC Statute,323 four States opted for a generic term.324 One State deleted the form of “planning”325 and one State preferred to use a version of the individual conduct from earlier proposals made by the International Law Commission and during the drafting of the ICC Statute definition.326

6.4.5.2

Croatia, North Macedonia, Finland and Afghanistan: Use of a Generic Term

A first group of States opted for a generic term, instead of enumerating the action verbs of “planning, preparation, initiation or execution”. The Croatian legislature, for example, employed the more neutral language of “uses the armed forces of one State” in Article 89(1) of the Croatian Criminal Code to describe the individual conduct.327 The North Macedonian implementation follows the Croatian example.328 According to Turkovi´c and Munivrana Vajda, using neutral language to express the conduct of direct perpetrators is consistent with the structure of other core crimes under Croatian law.329 It facilitates the application 321

See Ambos 2010, pp. 494 et seq. It was already identified as a problem during the drafting process, see Barriga 2012, pp. 23 et seq.; Clark 2017, pp. 575 et seq.; Barriga and Kreß 2011f, para 92. 322 See Elements of Crimes for Article 8bis of the ICC Statute, num. 3. 323 Austria, Cyprus (by reference), the Czech Republic, Georgia, Germany, Liechtenstein, Luxembourg, Samoa (by reference) and Slovenia. 324 Afghanistan, Finland, Croatia, North Macedonia. 325 Estonia. 326 Ecuador. 327 Turkovi´ c and Munivrana Vajda 2017, pp. 868 et seq. 328 See Article 403b of the North Macedonian Criminal Code which uses the same language of “uses the armed forces of one State” to describe the criminalized individual conduct. 329 Turkovi´ c and Munivrana Vajda 2017, pp. 868 et seq. See also Reisinger Coracini 2010, pp. 434 et seq.

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of the general part of the Croatian Criminal Code, such as the modes of participation.330 It thus enhances the consistency with the existing domestic law. Although the neutral language risks excluding conduct from the pre-execution phase, such as the “planning”, “preparing”, and “initiation” of an act of aggression,331 this is compensated by the application of the general part of the Croatian332 and North Macedonian law.333 Article 34 of the Croatian Criminal Code, for example, is the general rule on attempt334 and may replace the act of “initiation”. Article 103 of the Croatian Criminal Code criminalizes whoever prepares the commission of criminal offences against values protected under international law, including the crime of aggression. Acts in the preparatory phase of the crime of aggression are punishable under Croatian law, despite the linguistic departure from the parent norm under the ICC Statute. However, the punishment of these phases under Croatian law does not depend on an act of aggression by the State being carried out.335 Finland resorted to the generic term “commit”336 to describe the individual conduct for the crime of aggression. It criminalizes conspiracy and planning as a separate crime of “preparation of a crime of aggression”.337 The language and structure of this provision mirrors the parallel provision on “preparation of genocide”.338 The Finnish implementation thus seems to be guided by the interest of ensuring consistency with existing norms under domestic law. It also reflects the decision of the States Parties, expressed in the Elements of Crimes, that the act of aggression must have happened.339 There is a specific provision under the Finnish Criminal Code stating that the crime of aggression and the preparation of a crime of aggression “shall only be applicable if the act of aggression…is committed”.340 The Afghan implementation is also held in a neutral language as it uses “commission”, instead of “planning, preparation, initiation or execution”. Depending on the application of the general norms on attempt341 and “procuring equipment

330

Ibid. See for a similar discussion on the deletion of “planning” and “preparation” in Barriga and Kreß 2011d, p. 476. 332 See Turkovi´ c and Munivrana Vajda 2017, pp. 868 et seq. 333 The application of the general rule on attempt leads at least to the criminalization of an initiation of an act of aggression. See Article 19 of the North Macedonian Code. The preparation of the commission of a crime is only punishable when explicitly determined by law, see Article 18 of the North Macedonian Code. 334 It criminalizes whoever “performs an act which is spatially and temporally proximate to the realization of the material elements of the criminal offense”. 335 Turkovi´ c and Munivrana Vajda 2017, p. 869. See Elements of Crimes for Article 8bis of the ICC Statute, num. 3. 336 See Chapter 11, Section 4a of the Finnish Criminal Code. 337 See Chapter 11, Section 4b of the Finnish Criminal Code. 338 See Chapter 11, Section 2 of the Finnish Criminal Code. 339 See Elements of Crimes for Article 8bis of the ICC Statute, num. 3. 340 See Chapter 11, Section 14a of the Finnish Criminal Code. 341 See Article 47 of the Afghan Criminal Code. 331

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and performing preliminary acts”,342 conduct in the pre-execution phase is also punishable. As these modified implementations have shown, the use of a generic term instead of the updated Nuremberg and Tokyo formula does not necessarily prevent acts in the pre-execution phase from being punishable. If attempt and preparatory acts are criminalized under domestic law, it is possible to compensate for the departure from Article 8bis of ICC Statute. It also avoids the problematic question of how to combine the general rules on attempt and the modes of participation, such as “ordering” or “aiding”, with the four conduct verbs. However, the application of the general rules on attempt to such domestic implementations would fail to reflect that the act of aggression was actually carried out.343 The deletion of the four action verbs may also impair the understanding of the punishable conduct. Since the crime of aggression is based on a collective act, and not broken down in a list of individual acts, the use of “planning”, “preparation”, “initiation” and “execution” gives a better idea of the individual conduct. This increases the norm’s deterrent effect.344 Using generic terms like “commit” can be criticized for being non-definitions of the individual conduct of aggressors and causing tensions with the principle of legality.

6.4.5.3

Estonia: Deletion of “Planning” and Inclusion of Threatening

The Estonian implementation describes the individual conduct as the “participation in the leading, execution or preparation” of an act of aggression. This ensures some consistency with the previous formula of “participating in leading or preparation” of a war of aggression under former Section 91 of the Estonian Criminal Code. This tries to better align it to the Kampala definition.345 Although “planning” has deliberately been omitted from the Estonian definition, Parmas assumes this conduct is covered by a combined reading of provisions from the general part, such as the provision on attempt.346 In contrast to the planning of an act of aggression under Article 8bis of the ICC Statute, however, the application of the general rules on attempt to the Estonian provision would fail to reflect that the act of aggression was actually carried out.347 Another deviation from the definition of Article 8bis of the ICC Statute is the additional criminalization of “threatening with an act of aggression by a representative 342

See Article 49 of the Afghan Criminal Code. See Elements of Crimes for Article 8bis of the ICC Statute, num. 3. 344 This was the argument raised in the drafting process of Article 8bis of the ICC Statute, see Barriga and Kreß 2011f, p. 512, para 92. See also McDougall 2021, p. 236. 345 It was at least the legislative intention, see Estonia 2014, at 3.2.2. whereby the “formulation of the definition stems from the amendments to the Rome Statute”. See also Parmas 2017, pp. 903 et seq. 346 Parmas 2017, p. 904. 347 See Elements of Crimes for Article 8bis of the ICC Statute, num. 3. 343

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of the State” under Estonian law. This builds on former Section 91 of the Estonian Criminal Code, which criminalized the “representative of the State who threatens to start a war of aggression”.348 This extension of the individual conduct ultimately results in a deviation from the collective act of aggression given that States Parties only criminalized in Article 8bis of the ICC Statute the “use of armed force” and excluded the “threat to use force”.349

6.4.5.4

Ecuador: Inspiration from Earlier Versions of the International Description of the Individual Conduct

Ecuador deviates from Article 8bis of the ICC Statute by picking up on a proposal made by the International Law Commission in 1996350 and later suggested during the drafting process of Article 8bis of the ICC Statute.351 Article 88 of the Ecuadorian Criminal Code criminalizes the person who “orders or actively participates in the planning, preparation, initiation or execution” of an act of aggression or an armed attack. The same language was proposed in the drafting process of Article 8bis of the ICC Statute. It aimed to emphasize the leadership nature of the crime (“orders”)352 and to exhaustively define the individual conduct that creates criminal responsibility for aggression (“orders or actively participates”).353 It also offered a “catch-all” term (“actively participates”) for the different modes of participation, which would have compensated the excluded applicability of Article 25(3)(a) to (d) of the ICC Statute under the “monist” approach.354 Provided the Ecuadorian implementation is understood as a monist approach, its implementation of the individual conduct excludes the applicability of the general part on the modes of participation. It thus avoids the difficulties that may otherwise arise in combination with the four action verbs. Such implementation, however, can be perceived as a structural departure from the Kampala definition, which is based on a differentiated approach and thereby

348

See Section 91(1) of the Estonian Criminal Code. On this distinctive feature of the Estonian implementation, see Parmas 2017, p. 903. 349 See also Reisinger Coracini 2017, p. 1046. 350 See International Law Commission 1996, Article 16 whereby an “individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.” 351 Barriga and Kreß 2011c, p. 412, para 1: “…a person commits a ‘crime of aggression’ when…that person intentionally and knowingly orders or participates actively in the planning, preparation, initiation or execution of an act of aggression which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations.” 352 For a reasoning against the Nuremberg and Tokyo formula, see Barriga and Kreß 2011f, para 92. See Reisinger Coracini 2017, pp. 1045 et seq. 353 Barriga and Kreß 2011d, p. 472; Clark 2017, p. 577. 354 Ibid.

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applies the different modes of responsibility from the general part.355 It also isolates the crime of aggression from other crimes under Ecuadorian law, which are applied in combination with the general part.356

6.4.6 Conclusion to Modified Implementation The previous analysis focused on implementations of a modified version of the ICC Statute definition of the crime of aggression into domestic law. Most implementers, namely 12 out of 16, resorted to this option.357 This does not mean that they adopted a definition completely detached from Article 8bis of the ICC Statute. The definition of the ICC Statute was still used as the standard, as stated in the travaux préparatoires,358 or as suggested by the similarly worded domestic provisions. The deviations from Article 8bis of the ICC Statute affect different parts of the definition and vary in their extent. Almost all implementers omitted the explicit reference to the UN General Assembly Resolution 3314.359 Half of them omitted the list of acts of aggression.360 As these States retained the generic definition of the act of aggression,361 these are only technical modifications. Significant modifications occurred whenever States broadened the material or personal scope of the crime of aggression by omitting the threshold of “manifest” for a violation of the ius ad bellum,362 or by including persons that do not fulfill the leadership clause.363 Implementation can result in broader personal scope if States fail to mirror Article 25(3bis) of the ICC Statute and its exclusion of accessorial liability for persons not fulfilling the leadership clause. The broadening of the material scope was rare: The omission of “manifest” probably occurred by mistake in Croatia. In Estonia, the omission of the threshold conflicts with the intention of the legislature to bring domestic law in line with the ICC Statute. The “manifest” threshold is only lacking

355

Kreß and von Holtzendorff 2010, p 1189. On the differentiated approach, see Barriga and Kreß 2011d, p. 472. 356 This has been an argument in favor of the differentiated approach in the drafting of Article 8bis of the ICC Statute, see Kreß and von Holtzendorff 2010, p. 1189. 357 Among them are Afghanistan, Austria, Croatia, the Czech Republic, Ecuador, Estonia, Finland, Georgia, Germany, Liechtenstein, North Macedonia, and Slovenia. 358 See, e.g., Estonia 2014, at 3.2.2. (“based on the amendments to the Rome Statute”); Deutscher Bundestag 2016, p. 1 (“in enger Anlehnung an die Beschlüsse von Kampala”); Government of Liechtenstein 2018, p. 263 (“orientiert sich weitgehend an der Struktur von Article 8bis des Römer Statuts”). 359 Except for Finland, as well as the implementations by reference (Cyprus and Samoa). 360 Austria, the Czech Republic, Ecuador, Estonia, Georgia, Germany, Liechtenstein. Six States replicate the list, two others implement it by reference. 361 Except for Afghanistan, which has deleted the generic definition of an act of aggression. 362 See Croatia, Ecuador, and Estonia. 363 See Austria, Croatia, Liechtenstein, and North Macedonia.

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in Ecuador. Finally, the preference of four States364 for a generic description of the individual conduct constitutes a conceptual deviation from the solution chosen in Kampala. If combined with the general part of criminal law, however, such a general description does not cause significant gaps in substance with the parent norm. The same can be said for the Estonian deletion of “planning”, as well as the Ecuadorian adoption of the “monist” approach in the drafting of the individual conduct for Article 8bis of the ICC Statute. The reasons for departing from the definition of the parent norm were not always clear. Several implementers used modified implementation to ensure consistency with existing norms under domestic law. Croatia and Finland, for example, opted for a generic term to describe the individual conduct, which is more consistent with other crimes under domestic law. The unique description of the individual conduct under the Estonian provision, and the German addition of “war of aggression” were also led by the interest in consistency, namely the consistency with previous provisions on the war of aggression. The principle of legality was explicitly given as a reason by the German legislature to justify deleting the list of acts of aggression and the addition of “war of aggression”. Although the “manifest” threshold of the parent norm has been criticized for being vague, it is noteworthy that the domestic principle of legality did not prevent most implementers from using the “manifest” threshold without modifications. The examples from Croatia, Finland, Estonia and Germany confirm what has been generally described as one of the advantages of modified implementation. This is the possibility to consider distinctive features of the domestic legal culture, such as legislative preferences for consistency, with existing domestic norms or constitutional requirements like the principle of legality. The implementers made use of the second advantage of modified implementation less explicitly, namely the opportunity to shape international law. The implementations that widened the material and personal scope of the crime of aggression in comparison to Article 8bis of the ICC Statute could still be seen as an attempt to shape international law beyond the ICC Statute. In contrast, State conceptions have not expressly been documented regarding ambiguous points of the ICC Statute definition. Instead of taking an explicit stance on the exhaustive or non-exhaustive list of acts of aggression, half of the implementers simply deleted it. Nonetheless, this may be interpreted as confirming the non-exhaustive nature of the list and underlines the importance of the generic definition of the act of aggression.365 The same avoidance technique has been used by most implementers, who simply deleted the ambiguous reference to the UN General Assembly Resolution 3314. This can nonetheless be interpreted as limiting the relevance to those parts of the UN General Assembly Resolution that were replicated in the ICC Statute definition. The allegedly vague “manifest” threshold was not rendered more specific by most domestic implementations, except perhaps for the German attempt to add “war of aggression” as a guiding example of uses of force that reach the threshold. The ambiguous interplay between the four variations of

364 365

Namely Afghanistan, Croatia, Finland, and North Macedonia. Reisinger Coracini 2017, p. 1047.

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311

individual conduct and the general part was avoided by some States, which replaced them by a generic conduct verb. What most of the modified implementations have in common is that they concerned parts of the definition of the parent norm which were criticized during the drafting and in the subsequent academic evaluations of Article 8bis of the ICC Statute. The explicit reference to the UN General Assembly Resolution 3314 and its annexed list of acts of aggression, for example, were criticized for being unsuitable for criminal law purposes, or for including an element of uncertainty. The “manifest” threshold was described as vague and a too high standard for punishable use of armed force. The exclusion of everyone outside the leadership circle of a State was blamed for neglecting the broader narrative of the collective act of aggression. The description of the individual conduct was considered to cause friction with the general part of the ICC Statute. These points of critique indicate why some States might have opted for modification. The modified implementations do not seem to have left significant gaps compared to the parent norm, which could invite the International Criminal Court to exercise its complementary jurisdiction. In the few cases States widened the material and personal scope of the crime of aggression, domestic courts are “all too able” and can adjudicate uses of armed force and persons that are excluded from the scope of Article 8bis of the ICC Statute. These over-inclusive implementations are a regrettable departure from the core wrong of the crime of aggression. They ignore the limitation of punishable uses of armed force to manifest violations and the absolute leadership nature of the crime. If the over-inclusive language was not chosen to deviate in substance from the parent norm, however, domestic courts may still engage in a teleological interpretation of the domestic provision and make it consistent with the definition of Article 8bis of the ICC Statute.

6.5 Conclusion This chapter analyzed the three major options for implementing the crime of aggression as defined in Article 8bis of the ICC Statute into domestic law. Complete implementation by copying or by reference is an economic way to implement without risking gaps that may give rise to the complementary jurisdiction of the International Criminal Court. However, States that opt for complete implementation do not make use of the opportunity offered by the flexible functioning of complementarity to integrate their domestic legal culture and to specify aspects of the Kampala definition. Among the 16 implementers, only two States opted for an implementation by copying366 and two States opted for the implementation by reference.367 Implementation by copying Article 8bis of the ICC Statute alone does

366 367

Luxembourg and the Netherlands. Cyprus and Samoa.

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not suffice to bring domestic law in line with the ICC Statute definition. It additionally requires the implementation of the absolute leadership nature of the crime of aggression as enshrined in Article 25(3bis) of the ICC Statute to exclude accessorial responsibility for non-leaders.368 Consistent with previous implementations of other ICC Statute crimes, the implementation by reference was chosen by States which are under the influence of common law. Its understanding of the principle of legality tends to be less opposed to the technique of using references. Despite the general reluctance of civil law countries to use references, targeted static blanket references to Article 8bis of the ICC Statute do not seem to impair the understanding of a crime that is committed by persons “in a position effectively to exercise control over or to direct the political or military action of a State”. These persons are typically legally trained or legally advised. The third option is the modified implementation, which has been chosen by most implementers. The enacted domestic definitions do not seem to leave gaps to the parent norm. When substantive modifications occurred, they rather led to overinclusive implementations which render domestic courts “all too able” to prosecute. These substantive modifications constitute a regrettable departure from two aspects of the core wrong of the crime of aggression: the limitation to manifest violations of the underlying primary norms of ius ad bellum and the absolute leadership nature of the crime of aggression. Most of the modifications, in contrast, were of a technical or conceptual nature without changing the definition in substance. This suggests that States still try to closely mirror the ICC Statute definition, even if the disciplinary effect of complementarity is reduced due to the restricted jurisdiction of the International Criminal Court over the crime of aggression. Among the elements mostly left unchanged was also the “manifest” threshold. This part of the parent norm was criticized for being too vague. Hence, it is noteworthy that the domestic principle of legality did not prevent most implementers from including the “manifest” threshold without modifications. This seems to confirm that States Parties did their best to describe with sufficient clarity a crime which is based on violations of a field of law that is known for its ambiguities. If reasons for departing from the definition of the parent norm were accessible or clear from the linguistic and systematic interpretation of the domestic definition, they confirm what has been generally described as one of the advantages of modified implementation. This is the possibility to consider distinctive features of the domestic legal culture, such as legislative preferences for consistency with the existing domestic norms or constitutional requirements like the principle of legality. The implementers have not embraced the second advantage of modified implementation, namely the opportunity to shape international law by formally documenting certain State conceptions of the scope and interpretation of international criminal law. 368

The automatic application of the general part of domestic criminal law would otherwise still allow accessorial responsibility, even if the participant does not fulfill the leadership clause. The same can be said for other rules from the general part like the inclusion of responsibility of legal entities under Estonian criminal law, see Parmas 2017, p. 904.

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Other Documents Austrian Government (2015) Erläuterungen der Regierungsvorlage [Explanatory Memorandum to the Governmental Bill], ErläutRV 689 BlgNR XXV. GP: https://www.parlament.gv.at/PAKT/ VHG/XXV/I/I_00689/index.shtml#tab-Uebersicht. Accessed 15 September 2022 Commonwealth Secretariat (2017) Model Law - Rome Statute of the International Criminal Court Croatia (2013) Statement by the Representative of the Republic of Croatia, 12th Session of the Assembly of States Parties of the ICC, 21 November 2013: https://asp.icc-cpi.int/en_menus/ asp/sessions/general%20debate/Pages/general%20debate%20_%20twelfth%20session.aspx. Accessed 15 September 2022 Deutscher Bundestag (2002) Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Einführung des Völkerstrafgesetzbuches [Draft Law of the Federal Government on the Introduction of the Code of Crimes against International Law]. Bundestags-Drucksache 14/8524 Deutscher Bundestag (2016) Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Änderung des Völkerstrafgesetzbuches [Draft Law of the Federal Government to Amend the German Code of Crimes Against International Law]. Bundestags-Drucksache 18/8621 Dominican Republic (2016) State Report to the UN Human Rights Committee, CCPR/C/DOM/6. Estonia (2014) Eelnõu SE 554. Seletuskiri karistusseadustiku ja sellega seonduvalt teiste seaduste muutmise seaduse eelnõu juurde [Explanatory Memorandum to the Draft Law to Amend the Penal Code and Other Related Legal Acts (SE 554)]: www.riigikogu.ee/tegevus/eelnoud/eelnou/ 78433b29-8b2f-4281-a582-0efb9631e2ad. Accessed 15 September 2022 Estonia Eelnõu SE 119. Seletuskiri karistusseadustiku eelnõu juurde [Explanatory Memorandum to the Draft of the Penal Code (SE 119)] Estonian Ministry of Justice (2013) Karistusseadustiku ja sellega seonduvalt teiste seaduste muutmise seadus, 16 July 2013 [Draft Law for Amending the Penal Code and Related Acts] Government of Liechtenstein (2018) Bericht und Antrag an den Landtag des Fürstentums Liechtenstein betreffend die Abänderung des Strafgesetzbuches, der Strafprozessordnung, des Gesetzes über die Zusammenarbeit mit dem Internationalen Strafgerichtshof und anderen Internationalen Gerichten sowie des Naturschutzgesetzes, 9 October 2018: Nr. 90/2018 Liechtenstein Institute on Self-Determination (2012) Handbook Ratification and Implementation of the Kampala Amendments to the Rome Statute of the ICC: Crime of Aggression, War Crimes: Permanent Mission of the Principality of Liechtenstein Tot the United Nations Global Institute for the Prevention of Aggression, Liechtenstein Institute on Self-determination at Princeton University, November 2012 Luxembourg Chambre des Députés (2011a) Commission juridique [Law Commission], 12 October 2011a: https://www.chd.lu/wps/portal/public/Accueil/TravailALaChambre/Recherche/RoleDe sAffaires?action=doDocpaDetails&backto=/wps/portal/public/Accueil/Actualite/DossiersEnCo urs&id=6230. Accessed 15 September 2022 Luxembourg Chambre des Députés (2011b) Project de Loi n°6230 [Draft Law], 20 January 2011b, Document 6230/00: https://www.chd.lu/wps/portal/public/Accueil/TravailALaChambre/Recher che/RoleDesAffaires?action=doDocpaDetails&backto=/wps/portal/public/Accueil/Actualite/ DossiersEnCours&id=6230. Accessed 15 September 2022 Review Conference of the Rome Statute (2010) Resolution RC/Res.6 of 11 June 2010

Chapter 7

Legislative Specification of the Geographical Ambit of Domestic Criminal Jurisdiction

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.1 Jurisdiction and Its Various Expressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.2 The Lotus Case and the Framework of International Law for Domestic Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1.3 Consequences of Excessive Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 The Principles of Jurisdiction and Their Broader Categorization . . . . . . . . . . . . . . . . . . . 7.2.1 The Nature of the Crime and Principles of Jurisdiction . . . . . . . . . . . . . . . . . . . . . 7.2.2 Principles of Territorial and Extraterritorial Jurisdiction . . . . . . . . . . . . . . . . . . . . 7.2.3 “Aggressor State Jurisdiction” and “Other State Jurisdiction”? . . . . . . . . . . . . . . 7.3 Principle of Territoriality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 General Understanding and Applicability to the Crime of Aggression . . . . . . . . 7.3.2 The Locus Delicti of the Crime of Aggression: Even “Third State” Jurisdiction due to the Ambiguous Constituent Element of “Gravity”? . . . . . . . . . . . . . . . . . . 7.4 Nationality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 General Understanding and Applicability to the Crime of Aggression . . . . . . . . 7.4.2 The Nationality of the Aggressor: Does Aggressor State Jurisdiction Equal Nationality Jurisdiction? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Protective Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.1 General Understanding and Applicability to the Crime of Aggression . . . . . . . . 7.5.2 Whose Interests Are Affected: The Victim State and Its Allies? . . . . . . . . . . . . . 7.6 Passive Personality Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.2 Applicability to the Crime of Aggression: A Crime Committed Against Individuals? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.1 General Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.2 Closely Related Principle of Representation and Principle of Treaty-Based Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.3 Methodological Framework for Determining the Applicability to the Crime of Aggression Under Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . 7.7.4 Inductive Approach: Aggression-Specific State Practice and Opinio Iuris . . . . . 7.7.5 Deductive Approach: Principle-Based Reasoning . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.6 Conclusion: Applicability of Universal Jurisdiction to the Crime of Aggression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The operationalization of domestic implementation requires States to specify the geographical ambit of domestic criminal jurisdiction. To avoid State responsibility and corrective interpretations by domestic courts, this exercise of prescriptive jurisdiction needs to be based on a “permissive rule”. Such rules rebut the general presumption that international law prohibits States to extend jurisdiction to matters with a foreign element. The chapter discusses whether the principle of territoriality, the nationality principle, the protective principle, the passive personality principle and universal jurisdiction provide a permissive rule regarding the crime of aggression. The chapter clarifies that the nationality of the perpetrator or the nature of the crime cannot challenge the right of States to exercise territorial prescriptive jurisdiction. Due to the transboundary nature of the crime, territoriality enables States to criminalize aggression committed against them or from their territory. The added value of other principles of jurisdiction is primarily limited to criminalize those situations that do not fall under territorial jurisdiction. The protective principle may stretch to allied States whose vital interests are threatened. The chapter argues that it is possible to assume a permissive rule under customary international law for third States to exercise universal jurisdiction over the crime of aggression. This can be argued either under an inductive approach by emphasizing the practice of the International Military Tribunal at Nuremberg, or with support of deductive reasoning based on the nature of aggression as a “crime under international law”. Keywords Principles of jurisdiction · Lotus case · “Permissive rule” approach · Aggressor State jurisdiction · Territorial jurisdiction · Constituent element of “gravity” · Nationality principle · Protective principle · Allied States · Passive personality principle · Universal jurisdiction · Third States · Inhibitory context of State practice · Contextual assessment of State practice · Inductive reasoning · Nuremberg · Deductive reasoning · “Piracy analogy” · Erga omnes obligation · Third State countermeasures · Nature of “crimes under international law”

7.1 Introduction Apart from how to incorporate the definition of the crime of aggression into domestic law, the operationalization of domestic implementation raises the question of how to specify the geographical ambit of domestic jurisdiction.1 This second step is an integral part of handbooks on the domestic implementation of the ICC Statute crimes.2 The geographical ambit of domestic jurisdiction was also discussed during 1 Cassese et al. 2013, p. 271: “To bring the alleged authors of international crimes to book, states need to have not only laws, statutes, or some sort of judge-made legal regulation punishing those crimes, but also legal provisions clarifying their ambit of applicability.” Similarly, Robinson 2002, pp. 1861 et seq. 2 For the crimes, see Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute), Article 5. On the implementation of these crimes, see Case Matrix Network 2017, pp. 49 et seq.: “Besides incorporating the definitions of core international crimes, States ought to specify how the national legal orders

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the implementation process in Germany. Legal experts expressed their views on whether international law allows States to establish jurisdiction over the crime of aggression to cover situations where they neither aggress nor are aggressed.3 The legislative specification of criminal jurisdiction can certainly be influenced by political or practical considerations.4 The current chapter, however, focuses on legal considerations. It analyzes the framework of international law to be respected by States exercising the “jurisdiction to prescribe” (Sect. 7.1.1). The judgment of the Permanent Court of International Justice in the Lotus case offers the classical starting point for the framework given by international law.5 International law is today mainly understood as requiring a “permissive rule” (Sect. 7.1.2). Domestic legislatures are advised to specify the ambit of domestic jurisdiction in compliance with international law to avoid State responsibility for a breach of international law or to avoid corrective interpretations by domestic courts after a time-consuming legislative process (Sect. 7.1.3). This chapter is devoted to the discussion of the “principles of jurisdiction” under international law that may offer the “permissive rule” to exercise the jurisdiction to prescribe the crime of aggression. It places special emphasis on the most controversial one—the principle of universal jurisdiction.

7.1.1 Jurisdiction and Its Various Expressions “Jurisdiction”, a combination of the Latin words for law (ius, iuris) and to say (dicere), can be broadly described as “a legal power…to state the law”.6 It is understood as an aspect of State sovereignty.7 The International Criminal Court referred to jurisdiction as the “prerogative of control over things, places and persons (and their conducts)”, which “may be expressed in the manner of legislative, judicial or executive power”.8 will assert jurisdiction enabling local investigations and prosecutions.”; Commonwealth Secretariat 2017, pp. 63 et seq.: “Another issue to be considered is the jurisdiction to prosecute the crimes.” With respect to the crime of aggression, see Liechtenstein Institute on Self-Determination 2012, p. 17: “As discussed above, when implementing the definition of the crime of aggression, States will have to decide under what circumstances they wish to establish jurisdiction.” 3 The views were presented in the 111th session of the Parliamentary Committee for Law and Consumer Protection on 26 September 2016 by Christoph Barthe, Robert Frau, Florian Jeßberger, Claus Kreß, Rolf Baum, Arndt Sinn, and Ferdinand Wollenschläger. See https://www.bundestag.de/webarchiv/Ausschuesse/ausschuesse18/a06/anhoerungen/ Archiv/stellungnahmen-461332. Accessed 15 September 2022. 4 See, e.g., Deutscher Bundestag 2016, p. 12 in which the German government decided not to extend universal jurisdiction over the crime of aggression for political reasons and irrespective of whether this would be lawful. 5 PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10. 6 ICTY (AC), Tadi´ c, Decision, 2 October 1995, para 10. See also Ryngaert 2015, p. 5. 7 On the relationship of jurisdiction and sovereignty, see O’Keefe 2015, para 1.4. 8 ICC (AC), Al Bashir, Judgment, 6 May 2019 (2019), concurring opinion of Judges Eboe-Osuji, Morrison, Hofmanski and Bossa, para 41.

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These different expressions of jurisdiction are known as the “jurisdiction to prescribe”, the “jurisdiction to adjudicate” and the “jurisdiction to enforce”.9 In criminal law, jurisdiction to prescribe refers to a State’s authority to lay down the requirements and the consequences of a criminal offense in an abstract and general manner.10 It includes the question of the geographical ambit of criminal law.11 This will be the focus of the present chapter. By exercising jurisdiction to prescribe, States set the scope for the “jurisdiction to adjudicate” of their courts. This is understood as the authority to entertain legal proceedings in respect of a given matter.12 As domestic courts normally do not apply foreign criminal law,13 prescriptive and adjudicative jurisdiction are in principle congruent.14 The application of a State’s law by its courts (adjudicative jurisdiction) is simply the exercise or actualization of prescription.15 The presumption of congruency, however, can be rebutted by a rule stating the contrary.16 Potential legal challenges to adjudicative jurisdiction are considered in Chap. 8, particularly the principle of par in parem non habet imperium and immunities.17 The third, but for the chapter less relevant, expression of jurisdiction is the “jurisdiction to enforce”. It refers to a State’s authority “to induce or compel compliance or to punish noncompliance with its laws or regulations”,18 typically through executive authorities like the police.19

9

See §401 in American Law Institute 1987. See Jeßberger 2011, pp. 9 et seq. See also Geneuss 2013, p. 33; O’Keefe 2015, para 1.7. 11 See Jeßberger 2011, pp. 9 et seq. See also Geneuss 2013, pp. 33 et seq.; O’Keefe 2015, para 1.7. This form of jurisdiction is sometimes called “jurisdiction to legislate” although it does not matter whether the conduct is criminalized, depending on the domestic legal order, “by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court”, see §401(a) American Law Institute 1987; Ryngaert 2015, p. 9. 12 See Jeßberger 2011, pp. 10 et seq.; Mills 2014, p. 195; O’Keefe 2015, para 1.8; Ryngaert 2015, pp. 9 et seq. §401(b) American Law Institute 1987. 13 This is different under private law. See Akehurst 1972–1973, p. 179. For a rare exception, see Satzger 2012, §3 mn. 5. 14 Jeßberger 2011, pp. 9 et seq. See also Gärditz 2006, pp. 28 et seq.; Geneuss 2013, p. 36; Kreß 2006, p. 564; O’Keefe 2004, p. 737. 15 See O’Keefe 2015, para 1.11. 16 See Kreß 2006, p. 565. 17 On the relationship of immunities and the jurisdiction to adjudicate, see Fox and Webb 2015, p. 75; Geneuss 2013, p. 36 et seq.; International Law Commission 2016, para 147 whereby immunity is a “limitation or exception to the adjudicatory jurisdiction” of a State. 18 See §401(c) American Law Institute 1987. 19 For the terminology, see, e.g., Geneuss 2013, pp. 33 et seq.; Jeßberger 2011, pp. 9 et seq.; O’Keefe 2015, paras 1.6 et seq. 10

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7.1.2 The Lotus Case and the Framework of International Law for Domestic Criminal Jurisdiction The seminal but “somewhat ambiguous”20 judgment of the Permanent Court of International Justice (PCIJ) in the 1927 Lotus case offers the classical starting point for determining the international law framework which is relevant for designing domestic provisions on jurisdiction.21 This case concerned whether Turkey violated international law by exercising criminal jurisdiction over a watch officer of the French steamer SS Lotus. He was allegedly responsible for the collision with a Turkish ship on the high seas, killing eight people on board.22 According to the Court’s finding, “international law as it stands at present” does not contain a general prohibition that prevents States from extending the application of their laws (prescriptive jurisdiction) and the jurisdiction of their courts (adjudicative jurisdiction) to persons, property and acts outside their territory.23 It found that international law left them “a wide measure of discretion which is only limited in certain cases by prohibitive rules”.24 The judgment is traditionally read as providing States with freedom in designing their jurisdictional provisions provided there is no conflicting prohibitive rule under international law (“prohibitive rule” approach).25 International law permits what is not prohibited. This generous approach would give domestic legislatures broad room for extending their jurisdictional regime to matters with a foreign element. The burden to prove a prohibitive rule lies with the State objecting to the exercise of jurisdiction.26 Nowadays, the “prohibitive rule” approach is usually modified27 in a second step by acknowledging the principle of non-interference28 as a prohibitive rule.29 Noninterference is the corresponding duty to the sovereignty or the sovereign equality 20

See Ambos 2013, p. 207. For a detailed analysis of the judgment, see Jeßberger 2011, pp. 198 et seq.; see also Henzelin 2000, pp. 138 et seq. 22 The Turkish captain was also allegedly responsible for the collision and subject to criminal prosecution. On the facts, see PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, pp. 10 et seq.; Beaulac 2019, p. 49; Mann 1964, p. 33. 23 PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 19. 24 Ibid. 25 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, dissenting opinion of Judge van der Wyngaert, ICJ Reports 2002, p. 3, para 51; Blakesley 2008, p. 92; Fitzmaurice 1953, p. 16; Scharf 2007, pp. 287 et seq. 26 Ryngaert 2015, pp. 29 et seq. 27 In that vein, Oehler 1993, para 111; Reydams 2003, p. 27; Satzger 2015, § 4 mn. 2. 28 In literature, the prohibition of “interference” is often used interchangeably with the term prohibition of intervention. The principles of non-intervention and non-interference have been specified by UN General Assembly 1965 and UN General Assembly 1970. See Gerlach 1967, pp. 137 et seq.; Kunig 2008, para 6. 29 For the categorization, see Jeßberger 2011, pp. 203 et seq.; Werle and Jeßberger 2020c, para 24. 21

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of States.30 Under this so-called “genuine link” approach, the principle of noninterference is not violated by the exercise of jurisdiction with a foreign element as long as the State has a “genuine link” with the matter, such as nationality or territoriality.31 There is disagreement about what is required for a “genuine link”. Some generously accept any link which does not violate the prohibition of arbitrariness.32 Others strictly require a principle of jurisdiction as accepted under international law.33 In the latter case, the “genuine link” approach tends to lead to the same result as the so-called “permissive rule” approach,34 which is the one preferred in this chapter. Proponents of the “permissive rule” approach question today’s validity of the Lotus dictum35 and reverse the Lotus presumption. They start under the presumption that international law prohibits States to extend jurisdiction to matters with a foreign element, which can be rebutted by a permissive rule under international law.36 This is what German doctrine calls “prohibition with reservation of permission” (Verbot mit Erlaubnisvorbehalt).37 They argue that international law, “as it stands at present”,38 increasingly influences domestic law. This reduces the space of autonomy vis-à-vis other States and leaves little of the freedom once perceived as being intrinsically linked to sovereignty.39 The shift is also reflected in the tendency of domestic courts to justify their exercise of jurisdiction.40 This approach places the burden of proof on the State exercising jurisdiction. It must establish the existence of a permissive rule under international law.

30

The sovereign equality of States is enshrined in Article 2(1) of the UN Charter. See Ambos 2013, p. 208. In the same vein, Pappas 1996, p. 77; Ziegenhain 1992, p. 31. 31 See Ambos 2013, pp. 209 et seq. (“genuine link”, “sufficient link or connection”, “real link” or “genuine connection”); Crawford 2019, p. 440; Satzger 2015, § 4 mn. 2. 32 See, e.g., Kasper 1994, p. 545 who contends that only the prohibition of arbitrariness sets the limit; Martin 1992, p. 22. For a critical view, see Jeßberger 2011, pp. 205 et seq. 33 See, e.g., Werle and Jeßberger 2020c, para 24. In this case, it is necessary to wait for the crystallization of a customary rule which “may fail to do justice to legitimate State interests”, see Ryngaert 2015, p. 29. Similarly, Meng 1981, p. 471. 34 See Jeßberger 2011, p. 213; O’Keefe 2004, p. 738 fn. 12; Werle and Jeßberger 2020c, para 26. 35 See ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports 2002, p. 3, para 51; Jeßberger 2011, pp. 206 et seq. Similarly, Henzelin 2000, p. 160; Kreß 2002, pp. 831 et seq.; Weigend 2005, pp. 964 et seq.; Weiß 2002, p. 700; Werle and Jeßberger 2020c, para 20. 36 See Jeßberger 2011, pp. 203 et seq. See also Hays Butler 2000, p. 354; Delbrück et al. 1989, p. 320; Kreß 2002, pp. 832 et seq.; Werle and Jeßberger 2020c, para 25. 37 Jeßberger 2011, p. 212. On the term under German administrative law, see Maurer and Waldhoff 2020, § 9 mn. 52. 38 PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 19. 39 For a detailed account of this development of international law, see Jeßberger 2011, pp. 207 et seq.; Tomuschat 2001, pp. 56 et seq. 40 Akehurst 1972–1973, p. 167; Cryer et al. 2019, p. 51; Evans 2018, p. 295; International Bar Association 2008, p. 9; Jeßberger 2011, p. 209; Ryngaert 2015, p. 29.

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7.1.3 Consequences of Excessive Implementation As “permissive rules” the principles of jurisdiction41 only permit, but do not oblige States to extend their domestic jurisdiction to the crime of aggression.42 States would not violate international law if they failed to exhaust the possibilities of extending the geographical ambit of their domestic law. States may violate international law, however, if they opt for excessive implementation which is not in compliance with international law.43 For example, if they extend their domestic provisions on universal jurisdiction to a crime which is not covered by the corresponding principle under international law. States are advised to respect international law to avoid State responsibility and to prevent the enacted jurisdictional provisions being declared inapplicable, or otherwise interpreted by domestic courts.44 As to the external effect of an implementation in violation of international law, States risk international responsibility, at least when they exercise adjudicative jurisdiction based on the enacted laws.45 According to Oppenheim and Lauterpacht, “a State is internationally responsible for the decisions of its courts, even if given in conformity with the law of the State concerned, whenever that law happens to be contrary to International Law.”46 As to the internal effect of such an excessive implementation, the conflict with international law may lead domestic courts taking a corrective act.47 This can affect the applicability, or at least the interpretation, of the domestic norms.48 Customary international law shapes the framework which must be respected by domestic criminal jurisdiction. This source of international law is normally directly applicable in 41

For the terminology of “principles of jurisdiction”, see Ambos 2013, p. 209; Ryngaert 2015, p. 101. 42 On the notions of permissive, prescriptive and prohibitive rule, see de Hoogh 1996, pp. 19 et seq. Others describe this difference by distinguishing between universal jurisdiction as a power and a duty, see Kreß 2000, p. 168. 43 For the consequences in the reversed situation, meaning when a State designs a jurisdictional regime that is less progressive than international law allows, see Ryngaert 2015, p. 47. 44 Similarly, Werle and Jeßberger 2020a, paras 36 et seq. 45 State responsibility can accrue as both the legislature and the judiciary are organs of the State under Article 4 in International Law Commission 2001. On the consequences of ultra vires jurisdiction, see Reydams 2003, pp. 17 et seq. See also Mann 1976; Wildhaber and Breitenmoser 1988, pp. 167 et seq. 46 See Oppenheim and Lauterpacht 1955 (1974), p. 39 See also for a similar issue, the Lotus case where France alleged the violation of international law by the exercise of jurisdiction by Turkey and asked the Court to fix the indemnity in reparation to be paid. See the claims made by the French Government in PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 6. 47 Similarly, Werle and Jeßberger 2020a, paras 36 et seq. 48 For an overview of the interplay between international and domestic law, see Crawford 2019, pp. 48 et seq.; Jennings and Watts 2008, pp. 54 et seq.; Kunig and Uerpmann-Wittzack 2019, pp. 46 et seq.; Mann 1976; Shelton 2011b; Wildhaber and Breitenmoser 1988, pp. 163 et seq.

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the domestic legal order.49 Irrespective of whether customary international law is of higher,50 lower,51 or equal rank in comparison to domestic law, national courts first tend to interpret, if possible, domestic law to avoid a conflict.52 In various domestic legal systems, there is a “widely adopted”53 presumption against the existence of a conflict with international law. It must be presumed that a State would not intentionally enact a rule conflicting with international law.54 The corresponding interpretative rules are called “friendliness to international law” (Völkerrechtsfreundlichkeit) and “interpretation favoring international law” (völkerrechtskonforme Auslegung) in civil law countries.55 To conclude, legislatures should have an interest in creating laws, such as the domestic jurisdictional regime over the crime of aggression, in accordance with international law. This avoids the external effect of State responsibility for a breach of international law. It also avoids the situation where domestic courts interpret jurisdictional provisions in light of customary international law or set them aside for the case at hand after the completion of a time-consuming legislative process.

7.2 The Principles of Jurisdiction and Their Broader Categorization This chapter is devoted to the discussion of the “principles of jurisdiction” under international law that may offer the “permissive rule” to exercise the prescriptive jurisdiction over the crime of aggression. Among them are the principle of territoriality, the nationality principle, the passive personality principle, the protective principle and universal jurisdiction. If they are applicable to the crime of aggression, States are permitted to exercise prescriptive jurisdiction and, if necessary, create or adapt their domestic jurisdictional norms accordingly. Domestic jurisdictional norms that implement these principles have different designs. They can be framed in general terms and apply automatically to any crime which is incorporated into domestic law.56 Alternatively, they may apply only to 49

See Malanczuk and Akehurst 2002, p. 62. See Wildhaber and Breitenmoser 1988, p. 204. Most Western European countries give priority to customary international law over conflicting domestic rules. See the conclusion of the study by Wildhaber and Breitenmoser 1988, p. 206. 51 In the United Kingdom, statutory domestic law prevails over conflicting customary international law, see Jennings and Watts 2008, p. 61; Malanczuk and Akehurst 2002, p. 61. 52 See generally, Jennings and Watts 2008, pp. 81 et seq.; Betlem and Nollkaemper 2003. On this interpretative doctrine under common law, see Maxwell 1905, pp. 173 et seq.; Shelton 2011a, pp. 6 et seq.; Jennings and Watts 2008, pp. 61 et seq. 53 Jennings and Watts 2008, p. 81. 54 Wildhaber and Breitenmoser 1988, p. 166. 55 Ibid., p. 169. 56 See, e.g., Section 3 of the German Criminal Code: “German criminal law applies to offences committed on German territory”. 50

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certain crimes specified therein.57 The inclusion of the crime of aggression requires a modification of domestic provisions only in the latter case. Domestic norms on universal jurisdiction tend to be of the latter category. A broader categorization of principles of jurisdiction assists in understanding why their applicability to the crime of aggression requires more explanation. The categorization suggests where to expect more legal challenges to the exercise of jurisdiction. The principles of jurisdiction can be categorized by emphasizing different aspects. These are whether they depend upon the nature of the crime, whether they provide for extraterritorial jurisdiction and whether they enable States other than the aggressor State to establish jurisdiction.

7.2.1 The Nature of the Crime and Principles of Jurisdiction The first categorization is determined by whether the permissive rule to exercise jurisdiction depends on the nature of the crime, or on factual circumstances. In the former case, the applicability of the permissive rule must be established regarding the crime of aggression. Otherwise, the crime of aggression can benefit from the general applicability of the rule. For example, the protective principle and the principle of universal jurisdiction are principles that are dependent upon the nature of the crime. The protective principle only applies to crimes against security interests of the State.58 The principle of universal jurisdiction only applies to crimes against the fundamental interests of the international community.59 The range of crimes that fall within their scope of application is not uncontroversial.60 Their applicability to the crime of aggression thus requires further explanation. Jurisdiction based on the principle of territoriality, the principle of nationality, and arguably the principle of passive personality does not depend on the nature of the crime. Their applicability depends on factual circumstances, such as the place of commission (principle of territoriality), the nationality of the perpetrator (principle of nationality) and the nationality of the victims (principle of passive personality).61 The rationale, or the legitimacy,62 of territorial jurisdiction stems from the sovereignty of States to regulate what happens in their territory.63 The legitimacy of the jurisdiction 57

See, e.g., Section 6 of the German Criminal Code: “Regardless of which law is applicable at the place where they are committed, German criminal law further applies to the following offences committed abroad: …” 58 Jeßberger 2011, pp. 255 et seq. 59 Ibid., pp. 277 et seq. 60 Akehurst 1972–1973, p. 158; Jeßberger 2011, p. 255. 61 On the conceptualization of the principles regardless of the nature of the offense, see O’Keefe 2015, para 1.26 (for the principle of territoriality), para 1.30 (for the nationality principle). 62 Jeßberger 2011, pp. 223 et seq. 63 Ibid., p. 8

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based on the principle of nationality stems from the sovereignty of States over their nationals.64 Their legitimacy cannot be challenged by the nature of the crime of aggression. The crime of aggression thus benefits from the general applicability of territoriality and nationality. The categorization of the principle of passive personality is less clear. On the one hand, the principle of passive personality requires individuals to be the victims of the crime.65 This is why its applicability to crimes against collective interests is excluded. One may be tempted to consider that its applicability depends upon the nature of the crime. Its occasional categorization as a subcategory of the protective principle66 may also suggest that its applicability depends upon the nature of the crime. On the other hand, the legitimacy of the principle of passive personality is not explained by the nature of the crime but by the particular relationship between persons and their State of nationality.67 A State has the right, or is even under an obligation, to protect its nationals abroad.68 The nationality of the victim, not the nature of the crime, is the link to the forum State. If States limit the principle of passive personality to certain crimes with a minimum penalty, this does not necessarily mean that the seriousness of the crime establishes the link to the forum State.69 Because of this categorization, it will be assumed that aggression-specific practice does not need to be established for the applicability under customary international law of permissive rules that are unrelated to the nature of the crime. These are the principle of territoriality, the principle of nationality and arguably the principle of passive personality.

7.2.2 Principles of Territorial and Extraterritorial Jurisdiction A second categorization of the principles can be made along the lines of territorial jurisdiction and extraterritorial jurisdiction.70 This categorization seems to be a

64

See Ambos 2013, p. 217; Cryer et al. 2019, pp. 53 et seq.; Jeßberger 2011, pp. 242 et seq. See Jeßberger 2011, p. 258. See also Jescheck and Weigend 1996, p. 169. 66 The principle of passive personality is sometimes also presented as a subcategory of the principle of protection, see Ambos 2013, pp. 220 et seq.; Jeßberger 2011, p. 252; O’Keefe 2015, para 1.36. 67 Jeßberger 2011, p. 261. 68 Akande 2009, p. 451; Jeßberger 2011, p. 261. 69 Jeßberger 2011, pp. 262 et seq. 70 See, e.g., the distinction between territorial and extraterritorial jurisdiction in Bantekas 2011, paras 4 et seq.; Jeßberger 2001, p. 292; Kestenbaum 2016, pp. 65 et seq. 65

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consequence of the modern reading of the Lotus case. In principle, criminal jurisdiction is considered to be territorial and only exceptionally extraterritorial.71 Territorial jurisdiction is uncontroversial. Extraterritorial jurisdiction is more sovereigntysensitive and thus more controversial. The nationality principle, the passive personality principle, the protective principle and universal jurisdiction belong to the category of extraterritorial jurisdiction. The crime of aggression has a transnational scope, typically stretching over the territory of the aggressor State and the victim State.72 Accordingly, it always has a foreign element. The aggressor State and the victim State can exercise territorial jurisdiction. Jurisdiction is only completely “extraterritorial” if aggression is committed in a conflict between other States. Significant sovereignty-based concerns may thus arise primarily regarding the exercise of jurisdiction by third States. This assumption, however, does not necessarily capture a main controversy around the exercise of domestic jurisdiction over the crime of aggression.

7.2.3 “Aggressor State Jurisdiction” and “Other State Jurisdiction”? Sovereignty-based concerns were expressed regarding the exercise of territorial jurisdiction of States over situations where they are not the aggressor State. This would lead to a categorization of the principles into “aggressor State jurisdiction” and “other State jurisdiction”. This dichotomy can be traced back to the Commentary to Article 8 of the 1996 Code of Crimes by the International Law Commission73 and was repeated in 2010 by the US delegation to the Kampala Conference.74 The jurisdiction of States, other than the aggressor State, over the crime of aggression is said to conflict with the allegedly “fundamental principle”75 of par in parem non habet imperium. This phrase means that an equal does not have authority over an equal. It remains vague whether the principle affects the exercise of prescriptive jurisdiction, by preventing States from having legislative authority over an equal, or whether it is a challenge to adjudicative jurisdiction.

71

Ambos 2013, p. 208; Cassese et al. 2013, p. 273. See Clark 2010, 705. 73 See Commentary to Article 8 in International Law Commission 1996, para 15. 74 See the statement reprinted in Koh and Buchwald 2015, p. 274. 75 See Commentary to Article 8 in International Law Commission 1996, para 14. 72

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It seems as if the International Law Commission and scholars76 discussed the principle of par in parem non habet imperium as a prohibitive rule to adjudicative jurisdiction. The title “establishment of jurisdiction” for Article 8 of the 1996 Code of Crimes, and its first sentence could suggest that Article 8 deals with prescriptive jurisdiction. According to the first sentence, “each State Party shall take such measures as may be necessary to establish its jurisdiction”. However, Article 8 of the 1996 Code of Crimes stipulates in its second sentence that the aggressor State “is not precluded from trying its nationals”, which is a reference to adjudicative jurisdiction. According to the Commentary, the conflict with the principle of par in parem non habet imperium allegedly arises as “a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State”.77 Hence, the principle of par in parem non habet imperium is better placed in Chap. 8, where it will be discussed, alongside with immunities, as a challenge to the jurisdiction to adjudicate. Conceptually, it would also be impossible to categorize principles of prescriptive jurisdiction into “aggressor State jurisdiction” and “other State jurisdiction”. Due to the nullum crimen sine lege principle, jurisdiction to prescribe is exercised prior to the commission of the crime. When the legislation is enacted, there cannot be any “aggressor State”. Moreover, the principle of par in parem non habet imperium would challenge all principles of jurisdiction. It would carve out potential cases of aggression committed by other States from their scope of application. While territoriality, for example, would in principle provide jurisdiction to the aggressor State and the victim State, the principle of par in parem non habet imperium claims to restrict it to the aggressor State. Even the nationality principle would be restricted by the principle of par in parem non habet imperium as the individual aggressor may not necessarily have the nationality of the aggressor State. Logically, the principle of par in parem non habet imperium is better discussed as an exception or limitation to principles of jurisdiction.78 If the following discussion refers to the terms of “aggressor State”, “victim State” or “third State”, it seeks to position domestic legislatures to understand the practical implications of their specified geographical ambit of criminal law once a crime of aggression occurs.

76

They assess whether the “jurisdiction is limited to prosecutions” of a State’s own nationals, whether “prosecutions are illegal per se” and assume that the International Law Commission has “rejected the possibility of domestic courts adjudicating”, see Wrange 2017, p. 712, 716. Or whether the principle of par in parem non habet imperium “would bar domestic courts from exercising jurisdiction”, see Akande 2010, p. 30. 77 See Commentary to Article 8 in International Law Commission 1996, para 14. 78 See Wrange 2017, p. 717.

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7.3 Principle of Territoriality The principle of territoriality is generally considered the “least controversial”79 basis of jurisdiction and its core is firmly established in international law.80

7.3.1 General Understanding and Applicability to the Crime of Aggression According to this principle, a State has jurisdiction over all crimes committed within its territory, irrespective of the nationality of the perpetrator.81 The territory of a State is its land, sea and airspace.82 Territoriality itself is an expression of State sovereignty.83 Sovereignty gives States the authority to regulate what happens in their territory.84 The only decisive criterion for the application of territorial jurisdiction is the locus delicti, the place of commission.85 There are, however, different definitions of the place of commission. They are encapsulated in the buzzwords of “subjective” territorial jurisdiction,86 “objective” territorial jurisdiction,87 the “ubiquity principle” and the more controversial “effect principle”. The probably prevailing “ubiquity principle” has diminished the importance of a distinction between subjective and objective territorial jurisdiction. There is no logical reason for preferring the claims of the State where the crime was commenced (subjective territorial jurisdiction) over the claims by the State where the crime was completed (objective territorial jurisdiction).88 It provides for jurisdiction in both constellations as it suffices that the crime took place in whole, or in part, in the territory of the forum State. In other words, it suffices that a “constituent element”89 of the crime occurred in its territory.90 79

Cryer et al. 2019, p. 52. See Comment to §402 American Law Institute 1987; Comment to Article 3 of the Harvard Draft Convention in Harvard Research in International Law 1935b, p. 480. 80 Ambos 2013, p. 212; Jeßberger 2011, p. 227; Werle and Jeßberger 2020c, para 241. 81 Ambos 2013, p. 211; Jeßberger 2011, p. 225; Vagias 2014, pp. 13 et seq. See also Comment to Article 3 of the Harvard Draft Convention in Harvard Research in International Law 1935b, p. 480. 82 Ambos 2013, p. 211; Jeßberger 2011, pp. 229 et seq. 83 Ambos 2013, p. 212; Jeßberger 2011, p. 228; O’Keefe 2015, para 1.25. 84 Jeßberger 2011, p. 228. 85 Ibid., p. 226; O’Keefe 2015, para 1.26 (“Territorial commission is a sufficient criterion”). 86 See Hirst 2003, p. 46; Jeßberger 2011, p. 231; Oehler 1993, para 241; Vagias 2014, p. 16. 87 See Jeßberger 2011, p. 231; Ryngaert 2015, pp. 79 et seq.; Vagias 2014, p. 17. 88 Akehurst 1972–1973, p. 152. 89 Or “élément constitutif”. 90 See Akehurst 1972–1973, p. 152; Mann 1964, 84 et seq.; Oehler 1993, paras 246 et seq.; Comment to Article 3 of the Harvard Draft Convention in Harvard Research in International Law 1935b, pp. 494 et seq. For the language of “constituent element”, see PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 23. See also ICC (PTC), Situation in

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The “constituent element” of the crime seems to be equivalent to the concept of the “element of crime” as understood under the ICC Statute.91 The “effect principle” is the most controversial variant as it stretches the boundaries of the territorial principle. It asserts jurisdiction over crimes that occur outside the forum State but produce effects within its territory, even if these effects are not a constituent element of the crime.92 Territorial jurisdiction stems from the sovereignty of States over crimes committed in their territory and the place of commission is the decisive criterion for territoriality to apply. As such, the nature93 of the crime cannot per se challenge the right of territorial States to exercise jurisdiction to prescribe. The rationale and functioning of territorial jurisdiction would be ignored if its applicability to the crime of aggression was questioned due to the necessary act of State, or the nationality of potential perpetrators.

7.3.2 The Locus Delicti of the Crime of Aggression: Even “Third State” Jurisdiction due to the Ambiguous Constituent Element of “Gravity”? For the crime of aggression, this means that all States that hold territory where constituent elements occur can exercise territorial prescriptive jurisdiction. The crime of aggression is, by its very nature, a crime with transnational scope. It is typically considered to be committed in the aggressor State and the victim State.94 When the Special Working Group on the Crime of Aggression discussed the territorial jurisdiction of the International Criminal Court under Article 12(2)(a) of the ICC Statute, broad support was expressed for this view that “concurrent jurisdiction arises where the perpetrator acts in one State and the consequences are felt in another”.95 Some delegations did not see the need for a clarification of this understanding for the crime of aggression. Closer examination of the “constituent elements” of the crime of aggression in Article 8bis of the ICC Statute also suggests concurrent jurisdiction of the aggressor Bangladesh/Myanmar, Decision, 14 November 2019, para 56 which makes a distinction between the “principle of ubiquity” and the “constitutive element theory”. 91 Or the German Tatbestandsmerkmal. See Jeßberger 2011, pp. 230 et seq.; Wolswijk 1999, p. 364. See also ICC (PTC), Situation in Bangladesh/Myanmar, Decision, 14 November 2019, para 62 whereby the actus reus of the crime suffices for establishing the territorial link. 92 Ambos 2013, pp. 214 et seq.; Akehurst 1972–1973, p. 153; Hirst 2003, pp. 47 et seq.; Jeßberger 2011, pp. 232 et seq.; O’Keefe 2015, para 1.49. 93 Bosch 2004, p. 46 (“unabhängig von…der Art der Straftat”); O’Keefe 2015, para 1.26 (“regardless of…the nature of the offence”). 94 For the territorial scope of the crime of aggression, see Clark 2010, p. 705; Reisinger Coracini 2010b, p. 780. 95 See SWGCA Barriga and Kreß 2011a, pp. 629 et seq., paras 28 et seq.; Barriga and Kreß 2011a, paras 38–39.

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State and the victim State. Apart perhaps from the “execution”,96 the individual conduct of “planning”, “preparation” and “initiation” of an act of aggression typically occurs in the territory of the aggressor State. Political and military leaders presumably make plans on how to invade another country from their safe offices. This is where they set in motion the necessary preparation and give final instructions before initiating the use of force.97 The “execution” of the “act of aggression” which “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” is likely to turn the attacked victim State into a territorial State as well.98 The normative element of a “manifest violation” of the UN Charter, especially the qualifier of “gravity”, may open the floor for territorial jurisdiction by “third” States. Third States are not directly aggressed, but they may suffer from the social, economic, or environmental effects of the crime of aggression.99 In the case of the crime of aggression committed against Ukraine in 2022, these may be countries where refugees are fleeing to, which are dependent upon Ukraine’s exports, or whose environment is affected by the Russian attacks. Asserting territorial jurisdiction based on the effects of a crime, however, is generally more controversial.100 It leads “away from the territorial principle towards universal jurisdiction”.101 This objection is traditionally raised against the “effect principle”. It cannot be raised against the crime of aggression if the effects are part of the constituent element of “gravity”. According to the interpretation of Kreß, the effects included under the “gravity” criterion are those on “all sides”,102 which seems to be synonymous with the warring parties and excludes effects on third States. A more extensive interpretation of the “gravity” criterion is not suggested 96

In the same vein, McDougall 2021, p. 378. This corresponds to the subjective territorial principle, whereby the locus delicti is where the crime is commenced, where its conduct took place. For the purpose of territorial criminal jurisdiction over individuals, it is more convincing to consider the relevant “conduct” to be human conduct as the individual’s manifestation of will. The conduct of States, in contrast, is the consequence in sense of the objective territorial principle. But see Goussac 2008, pp. 180 et seq. 98 McDougall 2021, p. 378. Even if there are some listed acts of aggression in Article 8bis(2) of the ICC Statute which do not necessarily take place on the territory of the victim state, a territorial link to the victim State may still be established by the required threshold of a “manifest violation of the Charter of the United Nations” and the three qualifiers of “character, gravity and scale”. In the same vein, Wrange 2017, p. 715. 99 For the discussion of interpreting the jurisdiction of the International Criminal Court based on the effects principle, see Vagias 2014, pp. 162 et seq. 100 Jeßberger 2011, p. 232; Jennings 1957, p. 159. A limitation is proposed by Akehurst to effects that are “primary”, in the sense of “more direct” or “more substantial” than the effects on other States, see Akehurst 1972–1973, p. 154. Similarly, Vagias 2014, p. 169. See also Restatement §402(1)(c). 101 See on this general concern raised against the “effect principle”, Akehurst 1972–1973, p. 154; Vagias 2014, p. 163. 102 Kreß 2017, p. 520. See also Open Society Justice Initiative 2022, pp. 26 et seq. which refers to the number of casualties on the Ukrainian and Russian side, the disturbed common life in Ukraine due to the fleeing persons and the property destruction in Ukraine. The effects on neighboring countries are not mentioned in the assessment of “gravity”. 97

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by the initiation of criminal investigations in Poland in 2022. Poland is one of the neighboring countries of the Ukraine where significant social and economic effects are felt. The communiqué of the Polish Ministry of Justice, however, vaguely refers to the protective principle, not to territorial jurisdiction.103 Irrespective of potentially broader interpretations,104 the constituent elements of the crime of aggression occur (at least) in the aggressor State and the victim State. The legislative establishment of territorial jurisdiction over the crime of aggression thus covers situations in which the implementing State would either aggress or be aggressed.

7.4 Nationality Principle Another principle of jurisdiction recognized under international law is the nationality principle, also known as “active nationality principle”.105

7.4.1 General Understanding and Applicability to the Crime of Aggression According to the nationality principle, a State enjoys criminal jurisdiction over crimes committed by its nationals.106 The rationale of this principle is the personal authority States have over their nationals or, from the reverse perspective, the allegiance persons owe to their State of nationality.107 States usually implement the nationality principle with a limitation to crimes committed abroad to fill some of the gaps left by territorial jurisdiction.108 It sometimes exists in more restricted versions.109 Irrespective of 103

It emphasized that the violations of the legal rights of the “country directly neighboring Poland harm European and international security”, these acts are “directed against the interests of the international community, including the Republic of Poland”. See https://www.gov.pl/web/spr awiedliwosc/dzialania-ministerstwa-sprawiedliwosci-i-polskiej-prokuratury-wobec-wojny-na-ukr ainie. Accessed 15 September 2022. 104 The creativity of international criminal lawyers to interpret the constituent elements of a crime in a way that attributes territorial jurisdiction to States that are not necessarily the most obvious ones has already been shown by ICC (PTC), Situation in Bangladesh/Myanmar, Decision, 14 November 2019, paras 54 et seq. 105 See also Oehler 1993, para 751. 106 Akehurst 1972–1973, p. 156; Bantekas 2011, para 13; Jeßberger 2011, pp. 240 et seq.; O’Keefe 2015, para 1.30. The application of the principle can be extended to permanent residents, see Ambos 2013, pp. 219 et seq. 107 For the rationale, see also Ambos 2013, p. 217; Crawford 2019, p. 443; Cryer et al. 2019, p. 54; Jeßberger 2011, p. 242. 108 See Jeßberger 2011, p. 245. 109 For an overview of possible limitations, see ibid., pp. 245 et seq. See also Akehurst 1972–1973, p. 156.

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whether international law requires restrictions,110 such as double-criminality,111 or the commission of serious offenses,112 they would play a minor role in case of the crime of aggression.113 Dogmatically, the nationality principle is among the principles that apply irrespective of the nature of the crime.114 The decisive criterion is the nationality of the perpetrator. The personal authority of States over their nationals justifies the exercise of prescriptive jurisdiction. It is therefore not necessary to establish its applicability to the crime of aggression based on aggression-specific State practice. Regarding the crime of aggression, the nationality principle is the least controversial principle. The principle of par in parem non habet imperium has not been raised given that nationality jurisdiction is mostly exercised by the aggressor State.115

7.4.2 The Nationality of the Aggressor: Does Aggressor State Jurisdiction Equal Nationality Jurisdiction? A closer look at the definition of the crime of aggression reveals that nationality jurisdiction is not necessarily exercised by the aggressor State.116 According to Article 8bis(1) of the ICC Statute, an aggressor is “a person in a position effectively to exercise control over or to direct the political or military action of a State”. This leadership clause does not require the person to be a national of the aggressor State. It does not require a formal position of control or direction, which is often conditioned upon nationality under domestic law.117 It accepts positions of effective control or direction unrelated to nationality.

110

Among those that assert that restrictions are not required by international law are Akehurst 1972–1973, p. 156; Jeßberger 2011, pp. 246 et seq.; Oehler 1993, para 751. For a contrary view, see Ambos 2013, p. 218; Ziegenhain 1992, p. 57. 111 Ambos 2013, pp. 218 et seq.; Mann 1964, p. 91; Oehler 1993, para 710. 112 Mills 2014, p. 198; Ryngaert 2015, pp. 105 et seq. 113 Provided it suffices for the double criminality-clause that the crime of aggression is a “crime under international law” which is per definitionem directly punishable under international law even without an implementing act into domestic law. The limitation to serious offenses does not prevent the applicability to the crime of aggression, one of “the most serious crimes of concern to the international community as a whole”. 114 Jeßberger 2011, p. 240; O’Keefe 2015, para 1.30 (“A state enjoys prescriptive criminal jurisdiction over the extraterritorial conduct of its nationals, regardless of the nature of the offence.”). 115 Van Schaack 2012, p. 136. 116 Akande 2010, p. 32, fn. 138. 117 Under German law, for example, parliamentarians, the chancellor, ministers and the president need to be German. For parliamentarians, see Article 38(2) and (3) German Constitution in conjunction with §15 (1) no. 1 Bundeswahlgesetz. These articles also apply by analogy to the chancellor, see Herzog 2021, para 22. For the ministers, see Uhle and Müller-Franken 2018, para 15. For the president, see Article 54(1) German Constitution.

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This leads to the conclusion that the nationality principle allows States to exercise prescriptive jurisdiction over future situations in which they are not necessarily, but most likely the aggressor State.

7.5 Protective Principle Another principle of jurisdiction widely recognized118 under international law and discussed as a permissive rule is the protective principle.

7.5.1 General Understanding and Applicability to the Crime of Aggression According to the protective principle, a State can exercise criminal jurisdiction over crimes against State interests, regardless of the nationality of the perpetrator or the place of commission.119 It is based on the rationale that every State should have jurisdiction over crimes against its security, territorial integrity, or political independence.120 This has even been described as an untechnical form of “self-defense”.121 While the principle is well established, the range of crimes covered by the principle is not free from controversy. One may therefore question its applicability to the crime of aggression.122 As stated before, the principle of protective jurisdiction depends on the nature of the crime. It depends on the direction of the attack and the interests affected by the crime. Using deductive reasoning, the crime of aggression—the “holy grail” among the crimes against the State—would be covered123 even under a narrow approach requiring crimes that directly affect the core interests of a State.124 According to Article 8bis of the ICC Statute, aggression is directed against the fundamental interests of the State, such as territorial integrity and political independence. The simultaneous protection of international peace, and arguably of individual interests, as established in Chap. 3, does not challenge this assumption. 118

See Jeßberger 2011, p. 253; McDougall 2021, p. 380. Ambos 2013, p. 221; Cryer et al. 2019, p. 56; Jeßberger 2011, p. 252. 120 See Akehurst 1972–1973, p. 158; Ambos 2013, p. 221; Jeßberger 2011, p. 254; O’Keefe 2015, para 1.34. See Comment to Article 7 of the Harvard Draft Convention in Harvard Research in International Law 1935b, p. 543. 121 Ambos 2013, p. 221; Jeßberger 2011, p. 254; Kestenbaum 2016, p. 68. On protective jurisdiction and the right of self-defense, see, in detail, Garrod 2012, pp. 799 et seq. 122 Akehurst 1972–1973, p. 158; Crawford 2019, p. 216; Jeßberger 2011, p. 255. 123 In favor of the applicability to the crime of aggression, see Cryer et al. 2019, p. 56; Kestenbaum 2016, pp. 68 et seq.; McDougall 2021, p. 380; Wrange 2017, pp. 715 et seq. 124 Jeßberger 2011, p. 256. 119

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It leads to a plurality of applicable principles of jurisdiction. The applicability of the protective principle is also consistent with the broader description of the principle as an untechnical form of self-defense.125 The aggressed State has the right to exercise the technical form of self-defense under Article 51 of the UN Charter.126 Accordingly, it can a maiore ad minus be assumed that it has the right to respond to the aggressor State with milder means than armed force, such as a criminal trial against the organizers of the attack. This was asserted by Lord Wright, the chairman of the UN War Crimes Commission:127 “The nation attacked is entitled to defend itself, and it is incidental to that that it should be entitled to punish those individuals who are guilty of the aggression if they fall within its custody and a right or duty to try them first is ancillary.”128 Apart from this deductive reasoning, there is also supportive judicial State practice generated after World War II to reach the same conclusion under an inductive approach. The practice stems from the Nuremberg Tribunal and the Tokyo Tribunal, as well as courts that conducted the follow-up trials on the basis of Control Council Law No. 10. They are considered to have exercised, inter alia, protective jurisdiction.129 The idea of taking its practice as evidence for the right of States to exercise protective jurisdiction stems from the ambivalent self-perception of the Nuremberg Tribunal as found in the judgment: “The signatory Powers created this Tribunal…In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.”130 As discussed later, this passage gave rise to various interpretations regarding the kind of jurisdiction the signatory powers exercised collectively, instead of individually, including protective jurisdiction.131 Legislative State practice from the implementers of the Kampala Amendments, in contrast, is not necessarily instructive. If domestic provisions automatically establish protective jurisdiction over crimes inserted in the Criminal Code, the implementation of the crime of aggression as such does not explicitly confirm the applicability of the principle of protective jurisdiction.132 125

See Bertram-Nothnagel 2010, p. 26 who argues that the “exercise of national jurisdiction is tightly interlinked with the victim State’s right to self-defense”. 126 On the relationship between act of aggression, armed attack and crime of aggression, see Akande and Tzanakopoulos 2017. 127 It was established during World War II to collect evidence of the commission of war crimes. See Werle and Jeßberger 2020b, para 19. 128 Wright 1948, p. 20. See also Akande 2010, p. 33; Garrod 2012, p. 800. 129 See Carnegie 1963, p. 410; Jescheck 1952, pp. 162 et seq.; Lauterpacht 2008, p. 19; Woetzel 1960, p. 62; Wright 1947, p. 49. For more recent contributions, see Garrod 2012; Heller 2011, pp. 135 et seq. 130 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 444. 131 See, e.g., UN Secretary General 1949, p. 80. 132 But see the rare example from Cyprus where the jurisdictional provision applicable to the crimes implemented from the ICC Statute refers to the general jurisdictional provision in the criminal code, Article 5 of the Criminal Code. See Law 23(III)/2006 Law Amending the Rome Statute for the Establishment of the International Criminal Court (Ratification) Law of 2002, Article 6

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7.5.2 Whose Interests Are Affected: The Victim State and Its Allies? The applicability of the protective principle, however, is “likely to be of little practical import”133 if it only enables the victim State to exercise jurisdiction. As previously discussed, the victim State can exercise jurisdiction based on territoriality as it suffices that the crime is completed on its territory. The protective principle, however, could include States other than the directly aggressed States. Scholars have suggested, and there are examples of State practice,134 for the protective principle to be extended to crimes committed against member States of military alliances.135 Some perceive the follow-up trials against Nazi criminals, on the basis of Control Council Law No. 10, and the trials of the Nuremberg Tribunal and of the Tokyo Tribunal against the leaders of the Axis as being justifiable on this extended version of the protective principle.136 According to Akehurst, the rationale of this extended version is that “the interests of the members of an alliance are so united that an act which threatens one threatens all”.137 Even von Knieriem, who was accused but acquitted in the I.G. Farben trial, admits that “an act directed against an ally may be considered a violation of a nation’s own interests and may thus be subjected to the State’s own criminal law under the principle of protection”, allowing every State which participated in the war against Germany to judge “all acts committed against itself as well as against its allies”.138 In contrast to the previous discussion whether territorial jurisdiction includes third States, the inclusion of allied States under the protective principle is more straightforward. The security interests of a State are threatened by a crime of aggression committed against one of its allies, which leads to a duty to support an attacked member State of the alliance.139 Based on a broader understanding of protective jurisdiction, it is also conceivable to consider whether neighboring countries of the in conjunction with Law 3(III)/2018 amending the Rome Statute for the Establishment of the International Criminal Court (Ratification) Law of 2002, Article 5. Germany deleted the previous provision on aggressive war from the list of crimes covered by the protective principle under the German Criminal Code and created a separate provision in the German Code of Crimes Against International Law which limits the jurisdiction of German courts to crimes of aggression committed by Germans, or against Germany, see former Section 5 no. 1 of the German Criminal Code and Section 1 of the German Code of Crimes Against International Law. 133 McDougall 2021, p. 380. 134 See Akehurst 1972–1973, p. 159. Also for offense definitions of treason that include their commission against allied forces, see Reisinger Coracini 2010a, p. 572. 135 Akehurst 1972–1973, p. 159; Heller 2011; Jeßberger 2011, p. 256, fn. 201. 136 See Garrod 2012; Heller 2011, p. 136. 137 Akehurst 1972–1973, p. 159. 138 Von Knieriem 1959, p. 83. 139 As the risk does not need to materialize for the protective principle to apply, it suffices that the crime of aggression threatens the vital interests of the allied State, see Comment to Article 7 of the Harvard Draft Convention in Harvard Research in International Law 1935b, p. 552; Akehurst 1972–1973, p. 157.

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aggressed States are enabled to exercise jurisdiction.140 Interestingly enough, the Polish criminal investigations concerning crimes committed in Ukraine in 2022 seem to have included the crime of aggression on the basis of the protective principle. The communiqué of the Polish Ministry of Justice emphasized that the violations of the legal rights of the “country directly neighboring Poland harm European and international security”, these acts are “directed against the interests of the international community, including the Republic of Poland”.141 To conclude, deductive reasoning supports the applicability of the protective principle to the crime of aggression, which affects the core sovereignty interests of a State and allows a technical form of self-defense. This is supported by judicial State practice generated after World War II. In contrast to the principle of universal jurisdiction, the protective principle does not require a detailed evaluation of State practice if it only entitles the victim State to exercise jurisdiction. The protective principle has little added value to territorial jurisdiction if it only empowers victim States. The judicial practice after World War II, however, suggests an extension to allied States whose vital interests are threatened by a crime of aggression committed against the victim State. An extension to neighboring countries is also conceivable.

7.6 Passive Personality Principle Another principle of jurisdiction under international law is the passive personality principle.

7.6.1 General Understanding Under the passive personality principle, a State can exercise jurisdiction over crimes committed against its nationals.142 The passive personality principle addresses the reversed situation of the (active) nationality principle. Jurisdiction is based on the nationality of the victim and not the perpetrator.143 The rationale of the principle is linked to the relationship between individuals and their State of nationality. A State has the right, or even the obligation, to protect its nationals abroad.144 It is also an expression of distrust in the criminal justice of other States to protect foreign nationals.145 140

Kestenbaum 2016, pp. 68 et seq. See https://www.gov.pl/web/sprawiedliwosc/dzialania-ministerstwa-sprawiedliwosci-i-pol skiej-prokuratury-wobec-wojny-na-ukrainie. Accessed 15 September 2022. 142 Jeßberger 2011, p. 258; O’Keefe 2015, para 1.36. 143 Akande 2009, p. 451. 144 Akande 2009, p. 451; Jeßberger 2011, p. 261. 145 Cassese et al. 2013, p. 337; Oehler 1993, paras 127, 665. 141

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As crimes committed against nationals on the territory of the forum State can be prosecuted based on territorial jurisdiction, the passive personality principle is often restricted to crimes committed on foreign territory.146 The Lotus case has shown the limited added value of the passive personality principle to the applicable principle of territoriality.147 The fact that the jurisdictional link is merely established through the attack on some nationals abroad has been criticized. The perpetrator may be mostly unaware of the nationality of the victim.148 The national State of the individual victim has a weaker interest than the aggressed State, whose sovereignty has been affected.149 As an illustration, the passive personality principle would allow Austria to exercise jurisdiction over the crime of aggression if a single person killed by the Russian act of aggression in Ukraine was Austrian. It has thus been described as “the most aggressive basis for extraterritorial jurisdiction (if universal jurisdiction in absentia is discounted)”,150 or as having “a shabby reputation”.151 Now it has gained enough acceptance, at least with restrictions, such as the limitation to certain crimes of minimum gravity,152 to amount to a recognized principle of jurisdiction under international law.153

7.6.2 Applicability to the Crime of Aggression: A Crime Committed Against Individuals? The applicability of the principle of passive personality to the crime of aggression may be doubted for various reasons.154 First, the passive personality principle may depend upon the nature of the crime and require State practice with respect to the crime of aggression, instead of generally presuming its applicability. As claimed above, however, the legitimacy of the

146

This is why it is often defined as giving jurisdiction over crimes committed against nationals while they are abroad, see Ambos 2013, p. 222; Akande 2009, p. 451; Cryer et al. 2019, p. 55; Mann 1964, p. 91; Oehler 1993, para 129. 147 PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 23; Mann 1964, pp. 92 et seq. 148 Akande 2009, p. 451; Ambos 2013, p. 222; Ryngaert 2015, p. 110; Watson 1993, p. 19. 149 Ambos 2013, p. 222; Watson 1993, p. 44. 150 Ryngaert 2015, p. 110. 151 Although he admits that this reputation is “largely undeserved”, see Watson 1993, p. 45. 152 Ambos 2013, p. 223; Jeßberger 2011, pp. 262 et seq.; Ryngaert 2015, p. 112. 153 See Akande 2009, p. 451; Jeßberger 2011, pp. 258 et seq.; O’Keefe 2015, para 1.41. See also DR Congo v Belgium, ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, joint separate opinion of Judges Higgins, Kooijmans, and Buergenthal, ICJ Reports 2002, p. 3, para 47. For a more skeptical view, see Cryer et al. 2019, pp. 55 et seq.; Ryngaert 2015, pp. 110 et seq. 154 In favor of its applicability, see Kestenbaum 2016.

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principle of passive personality is not explained by the nature of the crime but by the relationship between nationals and their State of nationality.155 Secondly, the principle of passive personality only applies to crimes that are committed against individuals,156 while the crime of aggression is often considered to only target States.157 Chap. 3 argued that the crime of aggression not only protects State sovereignty and international peace, but also individual interests.158 They are deemed to be protected through the protection of State sovereignty, by the vague “gravity” qualifier or by criminalizing the lower level of protection caused by the application of international humanitarian law. This human core may suffice for considering the crime of aggression as a crime that is committed “against nationals”.159 Surprisingly, however, Cassese is unconvinced by the applicability of the principle of passive personality to crimes against humanity and genocide.160 Compared to the crime of aggression, these crimes have the structural “advantage” of being based on underlying acts that are clearly committed against individuals.161 According to Cassese, however, a link established by an attack on nationals is a “narrow and nationalistic standard for bringing alleged criminals to justice”.162 The prosecution of those crimes “should instead reflect a universal concern for their punishment”.163 If the applicability of passive personality is questioned for crimes under international law, which are based on acts against individuals, one may a fortiori challenge its applicability to a crime whose human core requires extensive reasoning. Even if applicable to the crime of aggression, however, the principle of passive personality would add little value to territorial jurisdiction.164 Its relevance is probably limited to situations where nationals of a third State are among the victims of the attack on the aggressed State.165

155

Jeßberger 2011, p. 261. See also Jescheck and Weigend 1996, p. 169; Jeßberger 2011, p. 258. 157 Reisinger Coracini and Wrange 2017, pp. 317 et seq. 158 See Chap. 3, Sect. 3.7. 159 See, however, the controversy whether the crime of voluntary intoxication, which is a crime of abstract endangerment, falls under the scope of passive personality due to the objective Strafbarkeitsbedingung of a crime against an individual while being intoxicated, see Popp 2020, para 45. 160 Cassese et al. 2013, p. 277. 161 Ibid., pp. 37 et seq. 162 Ibid., p. 277. 163 Ibid. 164 McDougall 2021, p. 380. 165 E.g. nationals of other States who were killed in the course of the Russian invasion of Ukraine in 2022. 156

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7.7 Universal Jurisdiction The principle of universal jurisdiction is the most controversial principle of jurisdiction.166 The crime of aggression is the most controversial crime under international law.167 The applicability of universal jurisdiction to the crime of aggression is thus expected to be highly contentious.168 Before analyzing whether customary international law allows the exercise of universal jurisdiction over the crime of aggression, it is necessary to give a general understanding of “universal jurisdiction”, to distinguish it from closely related concepts and to set out the methodological framework for the customary international law analysis.

7.7.1 General Understanding Universal jurisdiction can be understood as referring to the criminal jurisdiction of a State over crimes which do not have a link to the State asserting jurisdiction.169 For example, a link does not exist on the basis of the nationality of the suspect or of the victim, or the place of perpetration, or the endangerment of the State’s own vital interests. However, there are ambiguities as to its scope and allegations of the lack of a globally accepted definition.170 The rationale of universal jurisdiction is related to the direction of the attack. It enables States to exercise jurisdiction, as agents of the international community,171 over crimes that infringe or endanger the latter’s fundamental interests, such as international peace and security.172 This normative explanation is paired with the pragmatic justification that crimes falling under universal jurisdiction often lack prosecution.173

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Cryer et al. 2019, p. 56; O’Keefe 2004, p. 736; Scharf 2007, p. 276. See Stahn 2019, p. 95. 168 Similarly, Scharf 2012, p. 358. 169 Ambos 2013, p. 224; Cryer et al. 2019, pp. 56 et seq.; Geneuss 2013, pp. 121 et seq.; O’Keefe 2015, para 1.54; Jeßberger 2018b, p. 2; Jeßberger 2011, p. 271; Reydams 2003, p. 5; Stahn 2019, p. 18. 170 For the allegation that a globally accepted definition is lacking, see ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, dissenting opinion of Judge van den Wyngaert, ICJ Reports 2002, p. 3, para 44. Similarly Jalloh 2018, p. 51; Scheffer 2002, p. 422. 171 Akande 2003, p. 626; Henzelin 2000, p. 412; Jeßberger 2011, p. 272. 172 Cassese 2003, p. 591; Jeßberger 2011, pp. 271 et seq.; Jeßberger 2018b, pp. 2 et seq.; Weigend 2005, p. 971. 173 Ambos 2013, p. 225; Jeßberger 2011, p. 274; Kreß 2002, p. 837; Werle and Jeßberger 2020c, para 258. 167

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7.7.2 Closely Related Principle of Representation and Principle of Treaty-Based Jurisdiction The principle of representation and the principle of treaty-based jurisdiction are closely related to universal jurisdiction. The principle of representation is often considered to be an expression of universal jurisdiction,174 and counted as State practice by international organizations,175 States176 and scholars177 alike. The same tendency arises for the principle of treaty-based jurisdiction.178 The principle of representation179 allows States to exercise jurisdiction over foreigners that are found in their territory for crimes committed abroad, in representation of a State closer to the crime.180 The forum State exercises derivative jurisdiction,181 not as an agent of the international community (universal jurisdiction), but on behalf of the State with original jurisdiction (principle of representation).182 The principle of representation normally requires the crime to be punishable at the place of commission and some consent by the State with original jurisdiction.183 It is subsidiary to extradition.184 It is enshrined in many treaties in aut dedere aut iudicare

174

This is the estimation shared by Jeßberger 2011, p. 270 fn. 279. On the common confusion and the relationship between universal jurisdiction and the principle of representation, see Ambos 2013, p. 233; Gilbert 1993, p. 424; Oehler 1993, para 818; Pappas 1996, pp. 22 et seq. 175 Amnesty International, for example, has listed Section 7(2)(2) of the German Criminal Code among the provisions providing for universal jurisdiction: Amnesty International 2012, p. 58. German scholars, in contrast, consider it as an expression of the principle of representation: Ambos 2020a, para 27. 176 See, e.g., Article 13(2) of the Slovenian Criminal Code which was described by Slovenia as “universal jurisdiction” despite the required double-criminality, presence of the suspect and the non-extradition, see Slovenia 2020. 177 Reydams, for example, considers Section 7(2)(2) of the German Criminal Code as an expression of what he calls the “co-operative general universality principle”, see Reydams 2003, p. 143. For an understanding of universal jurisdiction which also covers the principle of representation, see Article 10 of the Draft Convention on Jurisdiction with Respect to Crime as reproduced in Grant and Barker 2007 with the permission from Harvard Research in International Law 1935a. 178 See Gärditz 2006, p. 165; Reisinger Coracini 2009, pp. 751 et seq.; Reydams 2003, p. 220. 179 Ambos 2013, pp. 230 et seq. Also called the principle of “vicarious administration of justice”, see Meyer 1990, pp. 115 et seq. See also Eser 1990, pp. 119 et seq. 180 See, in detail, Pappas 1996; Werle and Jeßberger 2020c, para 267. For examples, see Oehler 1993, paras 805 et seq. 181 Werle and Jeßberger 2020c, para 267. 182 Ambos 2013, p. 231; Jeßberger 2011, p. 267. 183 On the common requirements of the principle of representation, see Jeßberger 2011, pp. 268 et seq. See also Eser 1993, pp. 881 et seq.; Oehler 1993, paras 823 et seq.; Werle and Jeßberger 2020c, para 267. 184 Ibid.

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provisions, requiring the State where the suspect is found to extradite or prosecute them.185 The tendency to take implementations of the principle of representation as State practice on universal jurisdiction seems to be due to the disagreement about the understanding of universal jurisdiction. It is also due to the fact that differences between the principles are not necessarily visible in the wording of the norm. The impossibility of extradition, or the presence of the suspect, for example, can be a limiting factor under conditional forms of universal jurisdiction. In contrast, they are constitutive for the principle of representation.186 Scholars agree, however, on one distinctive feature. They agree that the State exercising jurisdiction on the basis of the principle of representation is acting on behalf of another State and not on behalf of the international community.187 The degree of acting in representation and with the consent of another State can vary.188 Consent may be presumed, for example, if the conduct is punishable at the place of commission.189 If a doublecriminality clause is absent, and the domestic jurisdictional provision is limited to specific crimes of international concern, the forum State should be considered as an agent of the international community.190 These jurisdictional provisions will thus be considered as an expression of universal jurisdiction, even if they otherwise contain requirements of the principle of representation, such as the presence of the suspect and the impossibility of extradition.191 The second principle to be distinguished from universal jurisdiction is the principle of treaty-based jurisdiction.192 It allows States to exercise jurisdiction over crimes subject to an international treaty concluded with other States.193 For Werle and Jeßberger, it is an expression of treaty-based jurisdiction if domestic provisions establish jurisdiction in a general manner over all offenses that are subject of an international treaty ratified by the forum State.194 They argue that the exercise of 185

Ambos 2013, p. 232; Werle and Jeßberger 2020c, para 268. See, e.g., Article 7(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (1465 UNTS (1987), 112). 186 See Jeßberger 2011, p. 285; Oehler 1993, para 818. For the distinction between universal jurisdiction in absentia (also called absolute universal jurisdiction) and conditional forms, see Ambos 2013, pp. 227 et seq.; Cassese et al. 2013, p. 278. 187 See Ambos 2013, p. 231; Jeßberger 2011, p. 267; Oehler 1993, para 879; Reydams 2003, p. 143. 188 For example, the Finish provision implementing the principle or representation requires that the State with original jurisdiction has “requested that charges be brought in a Finnish court”, see Chapter 1, Section 8 of the Finnish Criminal Code. 189 This is the case under German law, see Jeßberger 2011, p. 268. 190 According to Jeßberger, the difference to universal jurisdiction is, inter alia, that the principle of presentation is not limited to crimes that affect the interests of the international community. See Jeßberger 2011, p. 285. See also Pappas 1996, pp. 180 et seq. 191 See, e.g., Section 64(1)(4c)(c) of the Austrian Criminal Code and the identical Section 64(1)(4c)(c) of the Liechtenstein Criminal Code. 192 Jeßberger 2011, pp. 286 et seq. 193 Ibid. 194 Werle and Jeßberger 2020c, para 262.

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jurisdiction is limited by the terms of the treaty,195 which would be alien to universal jurisdiction. Reydams, in contrast, considers provisions with a blanket enabling clause as an expression of the “co-operative limited universality principle”.196 Hence, the reference to an international treaty does not necessarily prevent the provision from being categorized as universal jurisdiction. This view seems to be shared by Ambos. He contends that a State can subject a crime to universal jurisdiction if the international treaty has established a worldwide obligation to prosecute or has expressed that the crimes contained therein shall not go unpunished.197 Due to these controversies and consistent with other customary law analyses,198 this book will consider domestic provisions with general enabling clauses as universal jurisdiction. Their weight may be more limited, however, if the State has not clarified whether the provision is understood as an expression of universal jurisdiction, which includes the crime of aggression. As we will see, despite this broader understanding of what kind of domestic provisions can still count as an implementation of universal jurisdiction, the number of aggression-specific State practice is limited.

7.7.3 Methodological Framework for Determining the Applicability to the Crime of Aggression Under Customary International Law To assess whether there is a permissive rule under customary international law to exercise universal jurisdiction over the crime of aggression, the analysis follows the classical inductive approach requiring State practice and opinio iuris (Sect. 7.7.3.1). It is more difficult to identify aggression-specific practice instead of practice generated for crimes under international law in general.199 The reluctance of States to provide practice on universal jurisdiction over the crime of aggression can be explained by its inhibitory overall context (Sect. 7.7.3.2). This can be taken into account in the contextual assessment of State practice and opinio iuris (Sect. 7.7.3.3). The specific context of international criminal law and of the crime of aggression may also lead to the integration of deductive reasoning (Sect. 7.7.3.4).

195

See also Geneuss 2013, p. 125; Jeßberger 2011, pp. 292 et seq.; Kreß 2006, p. 566. On this notion, see Reydams 2003, p. 220. 197 Ambos 2020b, para 50. 198 See Reisinger Coracini 2017. 199 Looking for crime-specific practice seems to be the prevailing view. For details, see Hoven 2014, p. 362; Kreß 2006, p. 572. 196

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The Classical Inductive Approach: State Practice and Opinio Iuris

The analysis starts with the basic inductive200 approach to the identification of customary international law. It requires the establishment of two elements, namely general practice and opinio iuris.201 The objective requirement of general practice may take various forms. They range from physical and verbal acts202 to inaction,203 and from executive conduct to legislative and administrative acts to decisions of national courts.204 The subjective requirement of opinio iuris requires the practice to be undertaken with a sense of legal right or obligation.205 Acceptance as law can be expressed in different forms, such as public statements made on behalf of States, official publications, government legal opinions, or decisions of national courts.206

7.7.3.2

The Inhibitory Overall Context of Universal Jurisdiction Over the Crime of Aggression

When ascertaining customary international law, the overall context of universal jurisdiction over the crime of aggression must be considered. This context has an inhibitory nature. Factors that seem to contribute to the inhibitory context are the necessary State involvement207 and the commission by high-level perpetrators. By definition, the crime of aggression is based on a State act of aggression and can only be committed by persons from the leadership circle of a State.208 Third States may not be willing to unilaterally bear the material and diplomatic costs caused by the exercise of universal 200

See Commentary to Draft Conclusions 2, International Law Commission 2018a, para 5. See Article 38(1)(b) of the ICJ Statute; ICJ, Case Concerning the Continental Shelf (Libya v Malta), Judgment, 3 June 1985, ICJ Reports 1985, p. 13, para 27; ICJ, Jurisdictional Immunities of the State (Germany v Italy), Judgment, 3 February 2012, ICJ Reports 2012, p. 9, para 55; Draft Conclusion 2, International Law Commission 2018a. 202 It used to be controversial whether practice includes verbal acts, see d’Aspremont 2019, p. 253. 203 See, e.g., on the relevance of the lack of protest by governments against the fact that the criminal law of countries contained a rule that allows for jurisdiction over acts that have an effect in their territory, PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 23. On the relevance of the failure to react, see ICJ, Fisheries Case (United Kingdom v Norway), Judgment, 18 December 1951, ICJ Reports 1951, p. 116, p. 139. See Commentary to Draft Conclusion 10, International Law Commission 2018a, para 8. 204 For the full range of possible practice, see Draft Conclusion 6 in International Law Commission 2018a; Thirlway 2019, p. 73. 205 Draft Conclusion 9 in International Law Commission 2018a. See also O. Dörr, in Epping and Heintschel von Heinegg 2018, § 19 para 14; Thirlway 2019, pp. 84 et seq. 206 For the full range of possible forms of evidence, see Draft Conclusion 10(2), International Law Commission 2018a. 207 Or “system criminality”, see Cassese et al. 2013, p. 269. See also Reisinger Coracini and Wrange 2017, pp. 314 et seq. 208 See ICC Statute, Article 8bis. 201

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jurisdiction over high-level perpetrators for the limited political benefits.209 This is generally presumed by political science210 and is suggested by the empirical study of Langer and Eason.211 Universal jurisdiction investigations and trials regarding other core crimes have concentrated on “low-cost defendants”. These are defendants whose prosecutions do not impose substantial diplomatic and other costs to the prosecuting State.212 Persons “in a position effectively to exercise control over or to direct the political or military action of a State”,213 in contrast, can rarely be prosecuted without causing diplomatic repercussions for the forum State. The leadership clause of the crime of aggression thus tends to exclude “low-cost defendants”. Due to this tendency, the reluctance to generate State practice on universal jurisdiction may already play out at the legislative level.214 A second factor which makes up the inhibitory context is the rare occurrence of acts of aggression that amount to a “manifest” violation of the UN Charter.215 Judicial State practice cannot be generated in the absence of cases that fulfill the conditions of a crime of aggression. Despite the recent textbook example in Ukraine, the threshold of the “manifest” violation is so high that most cases of unlawful use of force are not punishable. The legislative branch may thus prefer to focus on crimes with day-to-day relevance. Apart from the definition of the crime of aggression, its long-lasting status as a “crime in limbo”216 could have contributed to the reluctant implementation of the crime of aggression into domestic law. Although aggression was the main charge in Nuremberg, the international community faced difficulties in defining aggression during the Cold War.217 It inserted a placeholder in the ICC Statute in 1998.218 It agreed on a definition of the crime of aggression in 2010. However, the decision to activate the jurisdiction of the International Criminal Court was postponed until 2017.219 Some States incorporated the crime of aggression into domestic law while it was still a “crime in limbo”. The Report of the Commonwealth Expert Group on Implementing Legislation, in contrast, considered including the crime of aggression into domestic law as “premature”.220 This was justified by the outstanding steps 209

See, in general, Fehl 2004, p. 369; Langer 2011, p. 5. See Abbott 1999, p. 374. For a critical view, see Fehl 2004, p. 369. 211 See Langer and Eason 2019; see also Langer 2011. 212 Langer and Eason 2019, p. 809. 213 ICC Statute, Article 8bis(1). 214 This was the case for Germany which explained its legislative decision against the extension of universal jurisdiction to the crime of aggression, inter alia, in reference to the State act of aggression and the leadership clause which generate cases of particular relevance for foreign relations that are better placed before an international criminal court. See Deutscher Bundestag 2016, p. 13. 215 Similarly on crimes related to armed conflicts: Kittichaisaree 2018, p. 165. 216 Ferencz 2018. 217 See Bruha 2017. 218 See ICC Statute, Article 5. 219 See ICC Statute, Article 15bis(3) and Article 15ter(3). 220 Commonwealth Secretariat 2017, pp. 57 et seq. 210

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of defining the crime and activating the jurisdiction of the International Criminal Court.221 The inhibitory context, created by the required State involvement in this leadership crime, the rare occurrence of “manifest” violations of the UN Charter and aggression’s former status as a “crime in limbo”, is thus where a rule of universal jurisdiction over the crime of aggression would have to arise.

7.7.3.3

Contextual Assessment of Evidence for State Practice and Opinio Iuris

This inhibitory context affects the assessment of State practice and opinio iuris.222 As the International Law Commission emphasized, the contextual assessment is an “overarching principle” that underlies all rules on how to ascertain customary international law.223 In concreto, the inhibitory context can play out in determining the “generality” of practice. To decide whether practice is sufficiently widespread and representative, as well as consistent,224 “the threshold that needs to be attained for each [of these requirements of generality] has to be assessed taking account of context”.225 This includes “the subject matter that the alleged rule is said to regulate.”226 If “most customs are found to exist on the basis of practice by fewer than a dozen States”,227 the determination of the generality of practice cannot be a mere numbers game.228 Qualitative aspects can thus influence the evaluation, such as the inhibitory context caused by the subject matter of exercising universal jurisdiction over leaders of another State.229 The contextual assessment of evidence of State practice and opinio iuris also invites weight to be given to the “context of transformative times”.230 The context of transformative times can involve “new developments of technology”, or “sentiments of moral outrage regarding crimes committed in conflicts”.231 According to Scharf , they can lead to a “Grotian moment” in which new rules of customary international 221

Ibid. Similarly on the application of the two-element approach in international humanitarian law, human rights law and international criminal law, see Kittichaisaree 2018, p. 165, where the context must be considered, such as the rare occurrence of armed conflicts and the confinement of human rights violation to some States as well as the tendency of those States to shield perpetrators. 223 Draft Conclusion 3 in International Law Commission 2018a. 224 Draft Conclusion 8(1) in International Law Commission 2018a. 225 See Commentary to Draft Conclusion 8 in International Law Commission 2018a, para 2. 226 See Draft Conclusions 3 and 8 in International Law Commission 2018a, para 2. 227 Roberts 2001, p. 767. 228 See Kittichaisaree 2018, p. 165; Scharf 2013, p. 38. 229 This may also lead to particular weight being given to “specially affected States”. See Commentary to Draft Conclusion 8 in International Law Commission 2018a, para 4. 230 See Scharf 2013, p. 29, 211; Scharf 2019, p. 612. 231 Scharf 2013, pp. 61 et seq. and Scharf 2019, p. 595, who refers to Treves 2006, para 24. 222

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law emerge with unusual rapidity and acceptance.232 Conceptually, the identification of a “Grotian moment” thus “minimizes the extent and duration of the State practice that is necessary”.233 Scharf ’s approach is not precluded by the International Court of Justice and the International Law Commission. Although a longer duration helps generate more State practice for reaching the “generality” threshold, both institutions confirmed that “the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law”.234 As we will see, Nuremberg is said to constitute a “Grotian Moment” which led to the rapid crystallization of certain rules under customary international law.235

7.7.3.4

Integration of Deductive Reasoning

Considering the overall context, such as the subject matter the alleged rule is said to regulate, may also lead to the integration of deductive reasoning, also called “principle-based” reasoning.236 In the context of human rights law or international criminal law, the inductive twoelement approach, has been described as being too burdensome237 and suffering from inconsistencies.238 This has led some scholars to offer new reformist ideas, such as “modern custom”.239 These modern approaches to customary international law give more weight to verbal acts which comes along with more deductive reasoning.240 Deduction goes from the general to the specific.241 In international criminal law, Kreß is a prominent proponent of the modern approaches.242

232

See Scharf 2013, p. 1, 211; Scharf 2010, p. 440; Scharf 2012, p. 371; Scharf 2019, pp. 593 et seq. See also Gassama 2004, p. 9 fn. 25. 233 Scharf 2010, pp. 467 et seq. 234 ICJ, Judgment, 20 February 1969, North Sea Continental Shelf Cases (Germany v Denmark), p. 3, para 74; Commentary to Draft Conclusion 8, International Law Commission 2018a, para 9. 235 Scharf 2013, pp. 67 et seq., 212 et seq. 236 See Kreß 2002, p. 839 (“Prinzipiengeleitete Argumentation”). 237 See Talmon 2015, pp. 429 et seq. See also Byers 1999, pp. 157 et seq.; Thirlway 2019, pp. 96 et seq. 238 See, e.g., Ambos 1997, pp. 176 et seq. 239 For an overview of these tendencies, see d’Aspremont 2019, pp. 247 et seq. See also Roberts 2001; Seibert-Fohr 2006, pp. 264 et seq.; Simma 1993, pp. 216 et seq.; Talmon 2015, pp. 429 et seq.; Worster 2014. 240 Meron 2003, p. 378. 241 Talmon 2015, p. 420. 242 Kreß 2000, pp. 108 et seq.; Kreß 2002, pp. 839 et seq.; Kreß 2006, pp. 573 et seq. For a concurring view, see Gärditz 2006, pp. 211 et seq.; Gärditz 2007, pp. 24 et seq.; Geneuss 2013, p. 177; Hoven 2014, pp. 362 et seq.

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The differences between the traditional, purely inductive, approach and the modern, deductive approaches seem to have become less significant.243 The International Law Commission accepted the importance of verbal State practice244 and the place of deductive reasoning “as an aid, to be employed with caution, in the application of the two-element approach”.245 This has led Kreß to abandon the term “modern custom” to avoid the suspicion of referring to a different kind of customary international law.246 “Modern custom”, once considered as “coutume sauvage”, seems to have become “coutume sage” or “coutume standard”.247 Literature on the formerly known “modern custom” gives guidance on how to integrate deductive reasoning “as an aid”. It can be used if “hard State practice” is insufficient, or somehow inconsistent.248 For example, it can be used to “confirm the results reached by induction, replace or lower the standard of inductive evidence”.249 Despite limited hard State practice, a new customary rule can thus crystallize if it naturally flows from existing principles.250

7.7.4 Inductive Approach: Aggression-Specific State Practice and Opinio Iuris The applicability of universal jurisdiction to the crime of aggression will be assessed based on an inductive approach requiring aggression-specific State practice and opinio iuris, before additionally engaging in deductive reasoning. There is a limited pool of State practice and opinio iuris that specifically deals with whether States have a right to exercise universal jurisdiction over the crime of aggression. It primarily consists of the practice of the International Military Tribunal at Nuremberg, legislative State practice, and other forms of State practice. Academic literature helps structure the discussion of the identified State practice.251 By taking a context-sensitive approach, this chapter assumes that there is a customary right to establish universal jurisdiction over the crime of aggression. The context-sensitive approach pays deference to the described inhibitory context and perceives Nuremberg as a “Grotian moment”. The rule, which emerged after Nuremberg, has since not been rebutted by contrary general practice accepted as law. 243

Similarly, d’Aspremont 2019, pp. 249 et seq. See Commentary to Draft Conclusion 6, International Law Commission 2018a, para 2. 245 See Commentary to Draft Conclusion 2, International Law Commission 2018a, para 5. 246 See Kreß 2021, para 121 fn. 360. 247 The terms “coutume sauvage” and “coutume sage” were coined by Dupuy 1974. See also Simma 1993, p. 217. 248 Kreß 2012, p. 251. See also Gärditz 2007, pp. 24 et seq. 249 See Talmon 2015, p. 427, 442. 250 See Kreß 2012, p. 251; Kreß 2018, para 9; Roberts 2001, p. 783; Schachter 1989, p. 11; Talmon 2015, p. 427. See also Gärditz 2007, pp. 24 et seq.; Worster 2014, p. 514. 251 Draft Conclusions 13 and 14 in International Law Commission 2018a. 244

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Nuremberg and Its Aftermath: Origin of a Customary Right to Exercise Universal Jurisdiction?

The customary right of States to exercise universal jurisdiction over the crime of aggression can be based on the exercise of jurisdiction by the International Military Tribunal at Nuremberg, the IMT Charter252 and its subsequent endorsement by the international community.253 This right to exercise jurisdiction to adjudicate includes, as a matter of logic, the right to exercise jurisdiction to prescribe. The inference of a right of States from the exercise of jurisdiction by an international court does not seem that straightforward. As Clark puts it: “[J]ust because something may be tried in an international tribunal does not mean that it can automatically be tried in a domestic court on a universal basis, but it must surely be a strong indication”.254 The idea of taking the practice of the International Military Tribunal at Nuremberg as evidence for a permissive rule of States to exercise universal jurisdiction stems from the self-perception of the Tribunal: “The signatory Powers created this Tribunal…In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.”255 This passage of the judgment allows various interpretations regarding the kind of jurisdiction the signatory powers exercised collectively, instead of individually. The assumptions range from a collective exercise of sovereign authority of the occupying powers over the territory and the population of Germany,256 to the collective exercise of passive personality jurisdiction,257 of

252

Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter). 253 For a detailed account of why the exercise of jurisdiction by the International Military Tribunal in Nuremberg, together with its Charter and the unqualified endorsement of the Nuremberg Principles by the UN General Assembly in 1946, can be perceived as establishing a right of States to exercise universal jurisdiction over the crime of aggression, see Scharf 2012, 2013, pp. 85 et seq. The Tokyo Tribunal, in contrast, was established with the consent of the Japanese government, which is why it is not considered as form of State practice on universal jurisdiction over the crime of aggression. See also Wrange 2017, pp. 718 et seq. For the opinion of Lord Millett, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, pp. 268 et seq. His opinion is mentioned among the materials pointing to the legality of universal jurisdiction over the crime of aggression by McDougall 2021, p. 382; Schabas 2016, p. 317. 254 Clark forthcoming, fn. 33. 255 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 444. 256 Bassiouni 2001, p. 91; Carnegie 1963, p. 415; Kelsen 1947, p. 167; Morris 2001, p. 38; Wright 1947, p. 49. 257 Carnegie 1963, p. 415.

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protective jurisdiction,258 or of universal jurisdiction.259 The two prevailing readings are the first and the last of these.260 It is the Tribunal’s emphasis on the word “any” nation which supports a collective exercise of universal jurisdiction.261 Universal jurisdiction is commonly understood as permitting the exercise of jurisdiction by any State even without a direct link to the crime. The exercise of universal jurisdiction is also suggested by features of the London Agreement, which established the International Military Tribunal, as well as of the annexed IMT Charter.262 Among them are the designation as “International” Military Tribunal, as well as the London Agreement’s preambular expression to act “in the interests of all the United Nations”.263 They depict the Tribunal as acting as an agent of the international community. The other most common reading is that the International Military Tribunal exercised sovereign authority of the occupying powers over the territory and the population of Germany.264 This view is supported by the Berlin Declaration whereby the Allied States “assume supreme authority with respect to Germany”.265 It is also supported by the judgment of the International Military Tribunal whereby “[t]he making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by

258

Carnegie 1963, p. 415; Garrod 2012, pp. 793 et seq.; Wright 1947, p. 49. See also UN Secretary General 1949, p. 80. 259 See, in particular, Scharf 2012, p. 376. See also Carnegie 1963, p. 415; King 2001, p. 282; Nsereko 1999, p. 101; Wright 1947, p. 49. See also UN Secretary General 1949, p. 80. 260 On the controversial legal nature of the International Military Tribunal, see Cryer 2010, pp. 38 et seq.; Jescheck 1952, pp. 149 et seq.; Schwelb 1946, pp. 208 et seq.; Wright 1947, pp. 48 et seq. 261 Carnegie 1963, p. 415; King 2001, p. 283. See also UN Secretary General 1949, p. 80. But see McDougall 2021, p. 382, whereby this is “an incredibly vague reference”. 262 On the features that depict the International Military Tribunal as an international court, see, in detail, Schwelb 1946, pp. 208 et seq. See also Scharf 2012, p. 375; Simons 1990, p. 58. 263 See Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (London Agreement), preambular para 4 and operative para 1; IMT Charter, Article 1. Schwelb 1946, p. 208, who lists even more features of the international nature of the Tribunal. See also Scharf 2012, p. 375; Simons 1990, p. 58. 264 Bassiouni 2001, p. 91; Carnegie 1963, p. 415; Kelsen 1947, p. 167; Morris 2001, p. 38; Schwarzenberger 1950, pp. 290 et seq.; Wright 1947, p. 49. See also the defense counsel of Dönitz, Kranzbuhler 1965, p. 337. 265 See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic, opened for signature 5 June 1945 (Berlin Declaration). See Morris 2001, p. 38; Wright 1947, p. 50; UN Secretary General 1949, p. 79.

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the civilized world.”266 However, the jurisdictional breadth of the Tribunal cannot be fully explained as a collective exercise of jurisdiction by the occupying powers that effectively assumed sovereign authority. It is incompatible with the law of occupation to exercise jurisdiction over crimes committed prior to the occupation.267 Universal jurisdiction, in contrast, does not face such a limitation. Ultimately, however, “we need not definitively decide the age-old debate since Nuremberg”.268 The positions are not mutually exclusive.269 Different principles of jurisdiction can overlap. For the purpose of identifying State practice on universal jurisdiction over the crime of aggression, it suffices that the International Military Tribunal also exercised universal jurisdiction. Even the UN Secretary-General at that time shared the view that the “Court seems to have perceived two different grounds of jurisdiction” in his memorandum submitted in 1949. In his view, the Tribunal exercised jurisdiction based on the supreme authority of the occupying powers as well as universal jurisdiction.270 If this international court also exercised universal jurisdiction, its practice can be a relevant source for a corresponding permissive rule for domestic courts. This is due to the assertion of the International Military Tribunal that States have “done together what any one of them might have done singly”. This builds the bridge for claiming a permissive rule for domestic courts. Even if there is now the tendency to base the authority of a court to exercise universal jurisdiction directly on the ius puniendi (authority to punish) of the international community,271 the Tribunal’s bottom-up justification of its jurisdiction can be used to perceive its practice as relevant for domestic jurisdiction. The remaining question concerns the weight to be attached to the Tribunal’s practice in the assessment of customary international law. As Scharf argues, Nuremberg constitutes a “prototypical Grotian Moment”,272 which led to an accelerated crystallization of a customary right to exercise universal jurisdiction over the crime of aggression.273 The International Military Tribunal was established and exercised

266

See IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 443. Referred to by Carnegie 1963, p. 415; McDougall 2021, p. 382; Morris 2001, p. 40; Schwelb 1946, p. 210; see also UN Secretary General 1949, p. 79. 267 Except for ensuring “public order and safety” or in the case of war crimes sensu stricto, see Jescheck 1952, p. 172; Woetzel 1960, pp. 79 et seq;. Wright 1947, p. 49. On the limits of exercising jurisdiction under the law of occupation, see also Grewe 1948, pp. 198 et seq. 268 Scharf 2012, p. 379; Scharf 2013, p. 105. 269 For the same reasoning, see Scharf 2012, p. 379; Schwelb 1946, p. 210; Wright 1947, pp. 48 et seq. 270 UN Secretary General 1949, pp. 79 et seq. 271 Jeßberger 2018b, pp. 2 et seq. 272 Scharf 2013, p. 67. See also the description of Nuremberg as a “constitutional moment for law” by Sadat 2007, p. 1206. 273 See, in detail, Scharf 2013, p. 1, 211; Scharf 2010, p. 440; Scharf 2012, p. 371; Scharf 2019, pp. 593 et seq. See also Gassama 2004, p. 9, fn. 25.

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jurisdiction in the “context of transformative times”.274 It was established in response to the most heinous crimes in the history of humankind, which include the campaign of aggressive wars launched by the Nazi leaders.275 This provides the “accelerating agent”, in which new customary rules, such as the right to exercise universal jurisdiction over the crime of aggression, could emerge with unusual rapidity and acceptance.276 Shortly after the International Military Tribunal provided the judicial practice of essentially 24 States,277 follow-up trials were conducted in national courts and military tribunals on the basis of Control Council Law No. 10.278 The newly established UN General Assembly unanimously affirmed, on behalf on the international community, “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal” in Resolution 95(I).279 The resolution did not specify the “principles of international law”. This raises doubt about the implicit affirmation of universal jurisdiction over the crime of aggression. Perceiving universal jurisdiction as an achievement of Nuremberg may also be doubted due to its omission in the list of the “Nuremberg Principles” later formulated by the International Law Commission.280 However, the UN General Assembly was willing to affirm, as the new voice of the international community, whatever the IMT Charter and the judgment of the Nuremberg trials recognized in a blanket fashion.281 The crime of aggression was the main charge at the Nuremberg trials and the Tribunal also operated based on universal jurisdiction. This is why the principle of universal jurisdiction over the crime of aggression seems to be included in the UN General Assembly’s deliberately general affirmation of the Nuremberg principles. From this point of view, it seems as if the principle of universal jurisdiction was 274

Transformative times can involve, for example, “sentiments of moral outrage regarding crimes committed in conflicts”, see Scharf 2013, pp. 61 et seq. and Scharf 2019, p. 595 who refers to the contribution by Treves 2006, para 24. 275 Scharf 2013, p. 67. See also Sadat 2007, p. 1206, who described Nuremberg as a “constitutional moment for law”. 276 Scharf 2013, p. 29, 211; Scharf 2019, p. 612; Scharf 2010, pp. 467 et seq. See, in contrast, van Schaack 2012, p. 141, who considers the judicial practice from the era right after World War II as too special as to place too much weight on them. 277 Namely the four Allied States France, Russia, the United Kingdom and the United States, which negotiated the London Agreement with the annexed IMT Charter and the 20 subsequently signing States: Australia, Belgium, the Czech Republic, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Serbia, Slovakia, Uruguay and Venezuela. See https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewSt ates=XPages_NORMStatesParties&xp_treatySelected=350. Accessed 15 September 2022. 278 Werle and Jeßberger 2020b, paras 37 et seq. On the legal basis of the trials conducted by the US military tribunals, see Heller 2011, pp. 107 et seq. The US military tribunals exercised jurisdiction over the crime of aggression, or crime against peace, in the I.G. Farben case, the Krupp et al. case, the von Weizäcker et al. case and the von Leeb et al. case. Whether they exercised universal jurisdiction is subject to controversy. In the List et al. case, the tribunal famously relied on universal jurisdiction, but did not deal with the crime against peace. See US Military Tribunal Nuremberg, Judgment, 19 February 1948, in Allied Control Council No. 10 1949, p. 1241. 279 See UN General Assembly 1946. 280 See International Law Commission 1950. 281 See UN General Assembly 1946, para 3.

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soon endorsed by the international community and crystallized in a relatively short time into customary international law. Given that the Nuremberg precedent is cited as the foundation of a customary right to exercise universal jurisdiction,282 it is little convincing to carve out the crime which was the main charge in these proceedings. If Nuremberg is perceived as the birthplace of a customary right to exercise universal jurisdiction over the crime of aggression, the inconsistency of subsequent instances of State practice no longer matters. Those instances that are consistent with the Nuremberg precedent confirm the rule. Those that question the right to exercise universal jurisdiction over the crime of aggression could only change this customary rule if they reached the threshold of “general practice accepted as law” giving rise to a contrary customary rule.283 Skeptics about the relevance of the Nuremberg precedent may criticize the relative uncertainty of any induction,284 such as generalizing a right to exercise universal jurisdiction for international and domestic courts based on the practice generated in Nuremberg. They would require practice from the domestic legislative, executive and judicial branch to affirm the validity of the Nuremberg claim for the domestic level. Regarding other core crimes, this affirmation occurred on a more regular basis, especially during the renaissance of universal jurisdiction in the 1990s, where criminal trials took place in third States.285 Regarding the crime of aggression, legislative practice since Nuremberg and the other forms of practice at the domestic level would probably still be too limited and—in light of the contrary practice—too inconsistent to affirm the validity of the Nuremberg claim.

7.7.4.2

Legislative Practice: The Implementers of the Kampala Amendments and Post-World War II Codifiers

From almost 200 States in the world, this author has identified only 20 to 30 States that have enacted legislation establishing universal jurisdiction over the crime of aggression as of 2022.286 282

For this reasoning, see Scharf 2013, p. 96, with references to case law. For examples from literature, see, e.g., Dinstein 1998, p. 27; King and Henry 2002, p. 348. 283 For such a reasoning, see Wrange 2017, p. 719. Similar with respect to the inapplicability of functional immunity under customary international law, Kreß 2021, para 31. 284 Bleckmann 1977, p. 505. For a detailed discussion of the (un-)certainty of inductive reasoning, see Bleckmann 1995, pp. 554 et seq. 285 For an overview of State practice, see Reydams 2003, pp. 81 et seq. 286 The legislative material is drawn from a variety of sources, including the comprehensive studies of Reisinger Coracini 2009, pp. 751 et seq.; Reisinger Coracini 2017, pp. 1068 et seq. See also the consideration by the Sixth Committee of the UN General Assembly of the item of “The Scope and Application of the Principle of Universal Jurisdiction”, which was included in the agenda in 2009 and has contributed to a series of States reports and summary reports of the SecretaryGeneral since then, such as UN General Assembly 2010; UN General Assembly 2020b. For the State reports and statements, see https://www.un.org/en/ga/sixth/75/universal_jurisdiction.shtml.

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The number is not clear-cut as the selection depends on the understanding of “universal jurisdiction” and “crime of aggression”. A broader understanding of “universal jurisdiction” includes, as elaborated above, provisions that are at the borderline to the principle of representation,287 or contain a blanket enabling clause which is open to interpretation.288 A broader understanding of “crime of aggression” adds to the practice of the implementers of the Kampala Amendments the post-World War II practice of States289 on the substantively related290 “crime of aggressive war”291 or “incitement to aggressive war”.292 A context-sensitive approach, which considers the inhibitory context described above, militates in favor of these broader understandings. Analyzing the legislative material of the implementers of the Kampala Amendments and of the post-World War II codifiers shows that the inclusion of aggression in the domestic provisions on universal jurisdiction can be explicit. For example, provisions can explicitly refer to all crimes included in the separate code,293 or refer to the article294 or to the part of the criminal code295 in which aggression is criminalized. Some of the identified provisions are an expression of a conditional form of universal jurisdiction, on the periphery of the principle of representation.296 Other domestic provisions use a general enabling clause, which leaves room for interpretation whether they are an expression of universal jurisdiction and whether the crime of

Accessed 15 September 2022. The implementation is also tracked on the website of Equipo Nizkor: http://www.derechos.org. For an overview of the status of implementation, see https://www.coa litionfortheicc.org/, https://www.pgaction.org/, https://crimeofaggression.info/page/2/. For studies of the law and practice on universal jurisdiction, see Amnesty International 2012; REDRESS and Fédération Internationale pour les Droits Humains 2010. 287 E.g., Austria, Liechtenstein and Luxembourg. 288 If States have provided an authoritative interpretation of these blanket enabling clauses, they undoubtedly count as practice on universal jurisdiction. Otherwise, the provision remains open to interpretation by the judiciary. On this problem, see Gärditz 2006, p. 165. 289 Bearing in mind that universal jurisdiction is primarily based on customary law, the right of States to exercise jurisdiction over the crime of aggression would anyway be limited to the latter’s understanding under customary international law. Kampala may have modified the customary understanding of the “crime of aggression”. 290 As elaborated in Chap. 3, Sects. 3.4.4 and 3.4.5. 291 See, e.g., in the Czech Republic, the provision on universal jurisdiction only mentions the section criminalizing the preparation of aggressive war (Section 406) but not the Section inserting the crime of aggression (Section 405a), see Article 7 of the Czech Criminal Code. 292 See, e.g., Timor-Leste with the criminalization of the incitement to aggressive war in Article 134 of the Timorese Criminal Code. It applies universal jurisdiction (or the principle of representation) according to Article 8 of the Timorese Criminal Code. 293 E.g., Cyprus, the Netherlands and Portugal. 294 E.g., Luxembourg, North Macedonia and Samoa. 295 E.g., Austria, Azerbaijan, Kazakhstan, Liechtenstein and Moldova. 296 E.g., Austria and Liechtenstein established jurisdiction over the crime of aggression but conditioned it upon the presence of the suspect and non-extradition. Luxembourg conditioned it upon non-extradition. See Section 64(1)(4c)(c) of the Austrian Criminal Code; Section 64(1)(4c)(c) of the Liechtenstein Criminal Code; Article 7-4 of the Luxembourg Code of Criminal Procedure.

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aggression is included.297 They carry more weight when an authoritative interpretation is available.298 It roughly corresponds to the classification made by Reydams to distinguish between domestic norms that provide for universal jurisdiction for crimes specifically referred to, those on the periphery of the principle of representation and those with a general enabling clause open to interpretation.299 Practice of Implementers of the Kampala Amendments Among the 16 implementers of the Kampala Amendments as of March 2022,300 nine States apply their provisions on universal jurisdiction to the crime of aggression and the other core crimes alike.301 However, some of them are conditional forms which are on the periphery of the principle of representation.302 These nine States are Austria, Cyprus, Georgia, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. In case of Afghanistan, Ecuador and Estonia, the applicability of universal jurisdiction to the crime of aggression is theoretically possible but depends on the interpretation of the blanket enabling clause.303 Only four implementers of the Kampala Amendments, namely Croatia, the Czech Republic, Finland and Germany, did not to extend universal jurisdiction to the crime of aggression.304 The Netherlands, Cyprus and Samoa are among the implementers that have clearly included the crime of aggression into the provision they consider as universal jurisdiction. These three countries have a separate act on ICC Statute crimes which provides

297

E.g., Afghanistan, Armenia, Belarus, Ecuador, Estonia, Georgia, Latvia, Slovenia, Tajikistan, Uzbekistan and Vietnam. 298 See Gärditz 2006, p. 165. 299 See Reydams 2003, p. 220. 300 Afghanistan, Austria, Croatia, Cyprus, the Czech Republic, Ecuador, Estonia, Finland, Georgia, Germany, Liechtenstein, Luxembourg, the Netherlands, North Macedonia, Samoa and Slovenia. 301 See Section 64(1)(4c)(c) of the Austrian Criminal Code; Article 6 of the Cypriot Law 23(III)/2006 amending the Rome Statute for the Establishment of the International Criminal Court (Ratification) Law of 2002 in conjunction with Law 3(III)/2018 amending the Rome Statute for the Establishment of the International Criminal Court (Ratification) Law of 2002; Article 5(3) of the Georgian Criminal Code; Section 64(1)(4c)(c) of the Liechtenstein Criminal Code; Article 7-4 of the Luxembourg Code of Criminal Procedure; Article 2(1)(a) of the International Crimes Act of the Netherlands; Article 117 of the North Macedonian Criminal Code; Section 13(1)(d) of the Amended Samoan International Criminal Court Act; Article 13(3) of the Slovenian Criminal Code. 302 Austria, Liechtenstein and Luxemburg. See Section 64(1)(4c)(c) of the Austrian Criminal Code; Section 64(1)(4c)(c) of the Liechtenstein Criminal Code; Article 7-4 of the Luxembourg Code of Criminal Procedure. 303 See Article 26 of the Afghan Criminal Code; Article 401 and Article 14 of the Ecuadorian Criminal Code; Section 8 of the Estonian Criminal Code. 304 See Article 16 of the Croatian Criminal Code; Article 7(1) of the Czech Criminal Code; Chapter 1, Section 7(1) of the Finnish Criminal Code in conjunction with “Decree on the Application of Chapter 1, Section 7 of the Criminal Code (627/1996)”; Section 1 of the German Code of Crimes against International Law.

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for universal jurisdiction for these crimes.305 The wording of the Dutch, Cypriot and Samoan provisions only differs as to the presence of the suspect, which is only required in the Netherlands and Samoa.306 A model law drafted for all Commonwealth States gives no guidance as to the domestic implementation of the crime of aggression.307 It explains this silence in the revised 2011 version by the outstanding activation of the crime of aggression.308 Nonetheless, the Commonwealth countries Samoa and Cyprus applied the jurisdictional regime recommended by the model law for genocide, crimes against humanity and war crimes without modifications to the subsequently incorporated crime of aggression. North Macedonia is also among the States that explicitly provide for universal jurisdiction over the crime of aggression and other core crimes.309 Instead of opting for a separate act, however, North Macedonia integrated the crime of aggression into its criminal code.310 Like the Cypriot legislation, the wording of the North Macedonian provision does not condition the exercise of universal jurisdiction upon the presence of the suspect. Forms of universal jurisdiction that are subject to further conditions, and may therefore be on the periphery of the principle of representation, can be found in Austria, Liechtenstein and Luxembourg. Austria and Liechtenstein have inserted an identical provision in their Criminal Code which establishes a uniform jurisdictional regime over crimes contained “in the 25th Part”, meaning over genocide, crimes against humanity, war crimes and the crime of aggression.311 They require the presence of the subject and non-extradition. The impossibility of extradition may be an expression of the principle of representation rather than of universal jurisdiction.312 305

See Article 2(1)(a) of the International Crimes Act of the Netherlands; Section 6 of the Cypriot Rome Statute for the Establishment of the International Court (Ratification) Law of 2002 in conjunction with Law 23(III)/2006 and Law 3(III)/2018; Section 13 of the Amended Samoan International Criminal Court Act of 2014. 306 See also the study on universal jurisdiction in EU Member States conducted through a questionnaire sent to these States REDRESS and Fédération Internationale pour les Droits Humains 2010, p. 99, whereby Cypriot law does not impose additional nexus requirements on the exercise of universal jurisdiction. 307 See Commonwealth Secretariat 2017, pp. 6 et seq. Despite the misleading date of publication in 2017, the Commonwealth Model Law was first developed in 2004, revised in 2011 by the Commonwealth Expert Group and subsequently approved by the Commonwealth Law Ministers. 308 See Commonwealth Secretariat 2017, p. 58, which does not include provisions on the crime of aggression as it was perceived “premature” before the activation of the jurisdiction of the ICC. 309 According to Article 117 of the North Macedonian Code, titled “Application of the criminal legislature to certain crimes committed abroad”, “[t]he criminal legislature is applicable to whosever commits a crime referred to…Articles—403 through 422 of this Code”. This includes, inter alia, the crime of aggression (Article 403b), genocide (Article 403), crimes against humanity (Article 403-a) and war crimes (Article 404 to 414). 310 See Article 403b of the Cypriot Criminal Code. 311 See Section 64(1)(4c)(c) of the Austrian Criminal Code and Section 64(1)(4c)(c) of the Liechtenstein Criminal Code. 312 For the discussion on its proper categorization, see, e.g., Bühler and Reisinger Coracini 2015, p. 512, whereby one could consider it as a form of conditional universal jurisdiction. See also Reisinger Coracini 2017, p. 1068, whereby it is a form of (conditional) universal jurisdiction.

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The lack of a double criminality clause and the limitation to the core crimes,313 however, depict the domestic courts as agents of the international community rather than as agents of the State that may seek extradition. To recall, acting on behalf of the international community and the limitation to certain crimes of international concern have been identified above as a difference to the principle of representation. The systematic comparison with the subsequent Section 65 (1)(2) of their respective Criminal Code may support this conclusion. These sections present a standard version of the principle of representation, requiring double criminality and the impossibility of extradition for the prosecution of crimes committed by foreigners abroad. Thus, when adopting a more generous approach, the Austrian and Liechtenstein implementations can be considered as forms of universal jurisdiction.314 The condition of non-extradition in Article 7-4 of the Luxembourg Code of Criminal Procedure, which includes the crime of aggression,315 does not prevent its categorization as an implementation of universal jurisdiction in the broader sense.316 This is due to the lack of a double-criminality clause. It also corresponds to Luxembourg’s classification of Article 7-4 of the Luxembourg Code of Criminal Procedure as a provision on universal jurisdiction.317 A final group of provisions that might increase the number of legislative practice are those with a general enabling clause.318 On the basis of such a clause, domestic courts can exercise jurisdiction over crimes that are stipulated in international treaties ratified by the country in question or otherwise recognized under international law.319 This depends, however, on the wording of the enabling clauses and their interpretation.320 If they require a treaty obligation or right to exercise universal jurisdiction over the crime of aggression, they are unable to provide relevant State practice. This is because the ICC Statute does not create one.321 In contrast, if it suffices that the 313

Which are enshrined in the 25th Part of the Criminal Code in Austria and Liechtenstein. Reisinger Coracini 2017, p. 1068. 315 See Article 7-4 of the Luxembourg Code of Criminal Procedure: “When a person who has committed abroad one of the offenses provided for in articles 112-1,…to 136quinquies [crime of aggression]…of the Penal Code is not extradited, the case will be submitted to the competent authorities for the purpose of prosecution in accordance with the rules provided for.” However, this article also lists other crimes than the core crimes. 316 There seem to be no further restrictions, see REDRESS and Fédération Internationale pour les Droits Humains 2010, p. 180. 317 See the report submitted by Luxembourg in the study of REDRESS and Fédération Internationale pour les Droits Humains 2010, p. 180. 318 See Reydams 2003, p. 220. See also Reisinger Coracini 2009, p. 751 (“blanket universal jurisdiction clauses”). 319 See, e.g., Article 16, second alternative of Croatian Criminal Code; Section 9 of the Croatian Criminal Code; Section 9 of the Czech Criminal Code; Articles 14 and 401 of the Ecuadorian Criminal Code; Section 8 of the Estonian Criminal Code; Section 6 no. 9 of the German Criminal Code; Article 13(3) of the Slovenian Criminal Code. 320 See Reisinger Coracini 2009, pp. 751 et seq. 321 See Chap. 2, Sect. 2.3.4. Moreover, such jurisdictional provisions would count as an implementation of the treaty-based principle as explained above. See also the general enabling clause in Section 9(1) of the Czech Criminal Code which requires the international treaty to provide for 314

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crime of aggression is a crime recognized under international law,322 or that the treaty expresses the will that this crime shall not go unpunished,323 they could count as relevant State practice. Slovenia and Georgia provide general enabling clauses, accompanied by official interpretation.324 The Slovenian provision appears ambiguous when requiring the offense to be “subject to prosecution” under international law.325 However, Slovenia has clarified in a report to the Sixth Committee of the UN General Assembly that it is understood as providing universal jurisdiction and applies to the crime of aggression.326 The similarly vague Georgian provision, requiring criminal liability to be “prescribed by the treaties to which Georgia is a party”,327 has been clarified in the report to the Sixth Committee. After referring to this provision as an example of universal jurisdiction, the Georgian report lists the “international documents envisaging to greater or lesser degree the principle of universal jurisdiction”.328 It mentions, inter alia, “the Statute of International Criminal Court (as amended by the 2010 Kampala Amendments)”.329 The provision on universal jurisdiction thus seems to include the crime of aggression. Afghanistan,330 Ecuador331 and Estonia332 provide general enabling clauses which could be considered as an expression of universal jurisdiction that includes the crime of aggression. However, the interpretation of these clauses is not entirely clear. universal jurisdiction. See Caban 2013, p. 198, who considers it to be an expression of “contractual universal jurisdiction”. 322 See, e.g., Article 26 of the Afghan Criminal Code. 323 See Ambos 2020b, para 50. 324 General enabling clauses carry more weight in the determination of customary international law if they are accompanied by explanations by the State, see Gärditz 2006, p. 165. 325 According to Article 13(3) of the Slovenian Criminal Code, Slovenian law applies to “any person who commits any criminal offence abroad which, under relevant international agreement(s) or general legal rules recognised by the international community, is subject to prosecution, regardless of the location where it was committed.” 326 Slovenia 2020, available at https://www.un.org/en/ga/sixth/75/universal_jurisdiction/slovenia_ e.pdf. Accessed June 2022. 327 See Article 5(3) of the Georgian Criminal Code: “Foreigners and stateless persons who commit crimes abroad shall be criminally liable under this Code, provided that the act constitutes a serious or particularly serious crime against the interests of Georgia or if criminal liability for this crime is prescribed by the treaties to which Georgia is a party.” 328 Georgia 2016. 329 Ibid. 330 See Article 26 of the Afghan Criminal Code. Despite being titled “Universal Jurisdiction”, its qualification as practice on universal jurisdiction over the crime of aggression is not clear, particularly due to the lack of a State report and the uncertainty of the English translation. 331 Whether the Ecuadorian Criminal Code establishes universal jurisdiction over the crime of aggression depends on the combined reading of Article 401, titled “Universal jurisdiction”, and Article 14 which sets out the conditions for the geographical scope of application of the Ecuadorian law. On the combined reading, see Mejía Granda 2016, pp. 26 et seq. 332 See Section 8 of the Estonian Criminal Code. The Estonian scholar Parmas has explored the possibility of exercising universal jurisdiction over the crime of aggression under this provision, see Parmas 2017, pp. 912 et seq.

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Due to presumption against the existence of a conflict with international law, States would not establish universal jurisdiction over the crime of aggression, if they were not convinced that they had a right to do so under international law.333 This is why the practice of the implementers of the Kampala Amendment is considered to be undertaken with a sense of legal right.334 This means it is supported by opinio iuris. One rare example of an express statement on the legality of universal jurisdiction is provided by Slovenia. It states that “Slovenia recognizes the divergent views among States concerning the application of universal jurisdiction to the crime of aggression…We however maintain that recourse to universal jurisdiction with respect to the crime of aggression is not incompatible with international law.”335 In contrast, four implementers of the Kampala Amendments have clearly decided not to include the crime of aggression in their provisions on universal jurisdiction.336 These are Croatia, the Czech Republic, Finland and Germany. Croatia did not list the article criminalizing aggression337 in the jurisdictional provision titled “Criminal Offences Committed Abroad against Internationally Protected Legal Interests”.338 Aggression also does not fall within the general enabling clause339 contained in the same provision.340 The Czech Republic did not add the crime of aggression either in the list of crimes that shall be prosecuted “even if such a crime has been committed abroad by a foreign national or a stateless person who is not allowed permanent residence in the Territory of the Czech Republic.”341 The default rule of 333

See also Akehurst 1976, p. 38, who assumes that in case of a permissive rule, “a claim that States are entitled to act in a particular way can be inferred from the fact that they do act in that way”. 334 For the understanding of opinio iuris, see Draft Conclusion 9(1) in International Law Commission 2018a. 335 Slovenia 2020, p. 2. 336 Given that these four States have more specific provisions on universal jurisdiction which were not extended to the crime of aggression, their provisions that are reminiscent of the principle of presentation will not be discussed. See Article 17(1) of the Croatian Criminal Code; Section 8(1) of the Czech Criminal Code (even if titles with “subsidiary principle of universality”); Chapter 1, Section 8 of the Finnish Criminal Code; Section 7(2)(2) of the German Criminal Code. 337 Article 89 of the Croatian Criminal Code criminalizes aggression. 338 See Article 16 of the Croatian Criminal Code. Those articles criminalizing genocide, crimes against humanity and war crimes, in contrast, are listed. 339 The general enabling clause does not apply either since Croatia and States Parties in general are not required under the ICC Statute to punish aggression committed abroad, the ICC Statute only encourages doing so. See Chap. 2, Sect. 2.3.4. One could argue whether such an enabling clause is rather an expression of treaty-based jurisdiction. 340 On the exclusion of the crime of aggression from the provision on universal jurisdiction in Croatia, see also Turkovi´c and Munivrana Vajda 2017, p. 875. 341 See Section 7 of the Czech Criminal Code. In comparison, genocide (Section 400), crimes against humanity (Section 401), war crimes (Section 411–416) and interestingly the Nuremberg and Tokyo inspired preparation of aggressive war (Section 406) can be found in the list. On universal jurisdiction in the criminal law of the Czech Republic, see Caban 2013, pp. 197 et seq. The deliberate omission of the newly inserted Section 405a on the “crime of aggression” strongly advises against categorizing the inclusion of “preparation of aggressive war” in the list of crimes as an example of universal jurisdiction over the crime of aggression. Previously, it had been mentioned as an example of State practice, see Ambos 2013, p. 230.

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Section 8(1) of the Czech Criminal Code, titled “subsidiary principle of universality”, does not offer an example of universal jurisdiction . It is rather an expression of the principle of representation due to the double-criminality clause, the requirement of presence and the non-extradition.342 Finnish law also excludes the crime of aggression from universal jurisdiction. Chapter 1, Section 7(1) of the Finnish Criminal Code establishes universal jurisdiction over “international offences”.343 The crime of aggression, however, is not mentioned in the latest version of the decree specifying these “international offences”.344 The German legislature also rejected extending the existing provision on universal jurisdiction to the crime of aggression.345 It restricted the application of German law to cases of aggression with a territorial or national link to Germany, or in other words to “offenses under Section 13 [crime of aggression] which were committed abroad, regardless of the law applicable in the locality where they were committed, if the offender was German or the offence was directed against the Federal Republic of Germany.”346 The decision of these States not to extend universal jurisdiction to the crime of aggression does not necessarily mean that they believe there is no right under international law. This is essentially what stands behind perceiving universal jurisdiction as a permissive rule, which gives a right, and not a mandatory rule.347 Germany, for example, based its decision “irrespective of the discussion on the current legitimacy of universal jurisdiction under international law” on political grounds.348 This cautiously chosen language of the German government does not express the legal conviction that an application of universal jurisdiction to the crime of aggression violates international law. Legislative State Practice Prior to the Kampala Conference In addition to the practice generated after the Kampala Conference, there is legislative practice which was largely inspired by the understanding of aggression by the Tribunals in Nuremberg and Tokyo.349 This adds, at most, thirteen States with

342

Similarly, Caban 2013, p. 198, whereby this provision “encapsulates in general terms the obligation of aut dedere aut iudicare”. 343 It established jurisdiction over “an offence committed outside of Finland where the punishability of the act, regardless of the law of the place of commission, is based on an international agreement binding on Finland or on another statute or regulation internationally binding on Finland (international offence)”. 344 For the latest version in Finnish: https://www.finlex.fi/fi/laki/ajantasa/1996/19960627. Accessed December 2020. 345 See Section 1 of the German Code of Crimes against International Law. 346 See second sentence of Section 1 of the German Code of Crimes against International Law. 347 Others describe this by distinguishing between universal jurisdiction as a power and a duty, see Kreß 2000, p. 168. 348 See Deutscher Bundestag 2016, pp. 12 et seq. 349 Reisinger Coracini 2009, pp. 750 et seq. See also Makoto 2015, pp. 353 et seq.; McDougall 2021, p. 382; Scharf 2012, p. 359.

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universal jurisdiction over the substantively related350 crime of “aggressive war”351 or “incitement to aggressive war”.352 Universal jurisdiction over the crime of “aggressive war”353 has been established in Azerbaijan,354 Moldova355 and Kazakhstan356 by referring to the part of the criminal code where all “crimes against peace and security” are listed.357 Lithuania also refers to the article criminalizing “aggression”358 in its provision on universal jurisdiction and initiated respective criminal investigations into the situation in Ukraine in 2022.359 Six other States that have criminalized aggression in line with the Nuremberg and Tokyo precedent have established universal jurisdiction on the basis of general enabling clauses that are linked to international treaties. It is open to interpretation whether these provisions from Armenia,360 Belarus,361 Latvia,362 Tajikistan,363

350

As elaborated in Chap. 4, Sects. 4.4 and 4.5. Armenia, Azerbaijan, Belarus, Moldova, Kazakhstan, Latvia, Lithuania, Tajikistan, Uzbekistan and Vietnam. 352 Timor Leste, Portugal and potentially Hungary. 353 For the articles criminalizing aggression, see Article 100 of the Azerbaijani Criminal Code; Article 139 of the Moldovan Criminal Code; See Article 160 of the Kazakhstani Criminal Code. 354 See Article 12(3) of the Azerbaijani Criminal Code. See also Azerbaijan 2010. 355 See Article 11(3) of the Moldovan Criminal Code. 356 See Article 8(1) of the Kazakhstani Criminal Code. 357 For the linguistic variations, see “crimes against the peace and mankind” (Article 12(3) of the Azerbaijani Criminal Code), “crimes…adverse…to the peace and security of humanity” (See Article 11(3) of the Moldovan Criminal Code) and “crimes against peace and human security” (See Article 8(1) of the Kazakhstani Criminal Code). 358 Article 110 of the Lithuanian Criminal Code. 359 See Article 7(1) of the Lithuanian Criminal Code. Despite the confusing wording of “crime against humanity and war crimes”, this provision refers to the articles mentioned in brackets afterwards, namely Articles 99-113. This includes aggression (Article 110). 360 Article 15(3)(1) of the Armenian Criminal Code. 361 See Article 6(3) of the Belarusian Criminal Code: “This Code applies independently of the criminal law in force in the place where the act is committed in case of the following offences:1) genocide (Article 127), 2) crimes against the security of mankind [crimes against humanity] (Article 128),…6) violation of the laws and customs of war [=war crimes], 9) other crimes committed abroad, which are prosecutable on the basis of a treaty to which Belarus is a party.” The crime of aggressive war, criminalized in Article 122 of the Belarusian Criminal Code, is not explicitly mentioned and Belarus is not a State Party to the ICC Statute. For the crime of aggressive war, see Article 122 of the Belarusian Criminal Code. On the principle of universal jurisdiction in Belarus, see Belarus 2019. 362 See Section 4(4) of the Latvian Criminal Code. For the crime against peace, see Section 72 of the Latvian Criminal Code. 363 See Article 15(2) of the Tajikistani Criminal Code. For the criminal offense, see Article 395 of the Tajikistani Criminal Code. 351

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Uzbekistan364 and Vietnam365 can be considered as an expression of universal jurisdiction or only of treaty-based jurisdiction and include the crime of aggressive war.366 Latvia confirmed its understanding of having universal jurisdiction over the crime of aggressive war by initiating respective criminal investigations into the situation in Ukraine in 2022.367 Conditional universal jurisdiction on the periphery of the principle of representation over the substantively related368 “incitement to aggressive war” has been established in Timor-Leste369 and Portugal.370 Article 8(b) of the Timorese Criminal Code lists “incitement to war”371 among the crimes that are subject to Timorese law “as long as the perpetrator is found in Timor-Leste and cannot be extradited or a decision has been made not to do so”. The exercise of universal jurisdiction over “incitement to war”372 is also conditioned upon the presence of the suspect and the non-extradition under Portuguese law.373 Hungary is another State, occasionally referred to as establishing universal jurisdiction over incitement to aggressive war.374 This, however, depends on the interpretation of the general enabling clause titled “criminal offenses which are to be prosecuted under [an] international treaty”.375 364

See Article 12 of Uzbekistani Criminal Code. For the crime of aggressive war, see Article 151 of the Uzbekistani Criminal Code. 365 Article 6(2) of the Vietnamese Criminal Code. For the criminal offense, see Article 421 of the Vietnamese Criminal Code (Law No. 100/2015/QH13, 27 November 2015). 366 They may count as practice on universal jurisdiction over the crime of aggression if it suffices that the provisions include crimes whose criminalization is provided by international treaties even if these treaties do not contain an explicit right or obligation. See, e.g., London Agreement or ICC Statute, both providing for the criminalization of aggression. In the same vein, see Reisinger Coracini 2009, pp. 751 et seq. 367 See https://vdd.gov.lv/en/news/press-releases/vdd-initiates-criminal-proceedings-for-crimescommitted-by-russian-armed-forces-in-ukraine. Accessed 15 September 2022. 368 As elaborated in Chap. 4, Sect. 4.4, there is an overlap between incitement to aggressive war and the Kampala understanding of a crime of aggression. 369 The similarity could be due to the common history of both States. The independence of TimorLeste from Portugal was internationally recognized in 2002. See Preamble of the Constitution of the Democratic Republic of Timor-Leste. 370 Although Portugal claims to have conditional universal jurisdiction over the crime of aggression, only “incitement to war” is criminalized in Article 17 and subject to the jurisdictional regime established by Article 5(1) of the “Criminal Law pertaining to violations of international humanitarian law” of 2004, see Law No. 31/2004. Portugal 2020. 371 Or better Article 134 of the Timorese Criminal Code which criminalizes incitement to war. 372 See Article 17 of the Law No. 31/2004 Adapting Portuguese Criminal Legislation to the Statute of the International Criminal Court (2004), Annex. 373 See Article 5(1) of the Law No. 31/2004 Adapting Portuguese Criminal Legislation to the Statute of the International Criminal Court (2004), Annex. 374 McDougall 2021, p. 382; Reisinger Coracini 2009, p. 751. See Section 331 of Hungarian Criminal Code: “Any person who before the public at large engages in incitement to war or otherwise displays war propaganda is guilty of a felony punishable by imprisonment between one to five years.” 375 Section 3(2)(a)(ac): “Hungarian criminal law shall, furthermore, apply: to any act committed by non-Hungarian citizens abroad, if: it constitutes a criminal act under Chapter XIII (Crimes against

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Even under a broader understanding of “universal jurisdiction” and the “crime of aggression”, the analysis of legislation prior and after Kampala has led to the identification of only 20 to 30 States. They have established universal jurisdiction over aggression, presumably accompanied by opinio iuris. From the identified 16 implementers of the Kampala Amendments, at least nine apply their provisions on universal jurisdiction to the crime of aggression.376 Three other States have a provision on universal jurisdiction with a general enabling clause whose applicability to the crime of aggression is open to interpretation.377 Only four States have not applied universal jurisdiction to the crime of aggression.378 This does not necessarily mean that they were convinced of its unlawfulness, as a right does not create a corresponding obligation to exercise prescriptive jurisdiction. Among the identified thirteen post-World War II codifiers, four States have explicitly established universal jurisdiction over aggressive war by referring to the respective chapters or article of their criminal codes. Six other States have a general enabling clause which is open to interpretation. Latvia confirmed its applicability to aggression by initiating criminal investigations into the situation in Ukraine. Three other States have established universal jurisdiction, partially at the periphery of the principle of representation, over the related incitement to aggressive war.

7.7.4.3

No Judicial Practice of Domestic Courts but Criminal Investigations and Opinion of Lord Millett in the Pinochet Case (No. 3)

As a realization of prescriptive jurisdiction, the exercise of adjudicative universal jurisdiction by domestic courts is also considered. In contrast to the existing practice regarding other crimes under international law,379 there have been no reported domestic trials for the crime of aggression based on universal jurisdiction.380 Latvia381 and Lithuania,382 however, initiated investigations regarding the crime of humanity) or XIV (war crimes), or any other criminal offenses which are to be prosecuted under international treaty ratified by an act of Parliament.” Incitement to aggression war is not part of the mentioned chapters, but in Chapter XXXII. 376 Austria, Cyprus, Georgia, Liechtenstein, Luxembourg, North Macedonia, the Netherlands, Samoa and Slovenia. 377 Afghanistan, Ecuador, Estonia. 378 Croatia, the Czech Republic, Finland, and Germany. 379 For an overview of State practice, see Reydams 2003, pp. 81 et seq. 380 The trials conducted by domestic courts against alleged aggressors were mostly based on a territorial link. See, e.g., those that took place in Ukraine after the annexation of Crimea, Sayapin 2018; Sayapin 2020. 381 See the statement of the Latvian State Security Service of March 2022 whereby criminal investigations were initiated for crimes against peace, see https://vdd.gov.lv/en/news/press-rel eases/vdd-initiates-criminal-proceedings-for-crimes-committed-by-russian-armed-forces-in-ukr aine. Accessed 15 September 2022. 382 See the statement of the Lithuanian Prosecutor general of March 2022 whereby the investigations were initiated in accordance with Article 110 which criminalizes aggression. It emphasizes that

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aggression allegedly committed against Ukraine in 2022. This might lead to trials against Russians and other perpetrators. A separate opinion by a domestic judge has been provided by Lord Millett. He elaborates a right to exercise universal jurisdiction over the crime of aggression in his opinion in the House of Lords’ third ruling in the Pinochet case on the basis of the Nuremberg legacy.383 Referring to the principles of the Charter of the International Military Tribunal, the judgment of the Tribunal and the UN General Assembly Resolution 95(I), he argues that “it was no longer possible to deny that individuals could be held criminally responsible for war crimes and crimes against peace and were not protected by State immunity from the jurisdiction of national courts”.384 He then continues that such “crimes prohibited by international law attract universal jurisdiction under customary international law”.385 Admittedly, the right to exercise universal jurisdiction over the crime of aggression was irrelevant for the legal question at hand.386 His view is also not necessarily representative of the position of the United Kingdom. Nonetheless, his opinion is an explicit judicial assertion of such a right and corresponds to the development of a customary right from the Nuremberg legacy as presented above.

7.7.4.4

Verbal Acts and the Absence Thereof

Relevant State practice may also include verbal acts of States, or the absence thereof.387 There is a possibility of making statements on the question of universal jurisdiction at the Sixth Committee of the UN General Assembly when discussing the item of universal jurisdiction.388 Conferences of the States Parties of the International Criminal Court also offer an opportunity.

criminal proceedings in Lithuania would only be possible if there are no proceedings conducted in Ukraine or by an international tribunal: https://www.delfi.lt/news/daily/lithuania/pradetas-ikiteismi nis-tyrimas-del-nusikaltimu-zmoniskumui-rusijai-uzpuolus-ukraina.d?id=89606209. Accessed 15 September 2022. 383 For the opinion of Lord Millett, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, at 268 et seq. His opinion is raising in the materials pointing to the legality of universal jurisdiction over the crime of aggression by McDougall 2021, p. 382; Schabas 2016, p. 317. 384 See House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 272. 385 Ibid., p. 275. For this purpose, two criteria must be satisfied: “First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens. Secondly, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order.” 386 Van Schaack 2012, p. 143 fn. 47. 387 See Conclusion 6(1) in International Law Commission 2018a. 388 For the work of the Sixth Committee on “The Scope and Application of the Principle of Universal Jurisdiction”, see https://www.un.org/en/ga/sixth/. Accessed 15 September 2022.

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States mostly avoid making a clear verbal statement on whether universal jurisdiction includes the crime of aggression.389 Instead, they opt for a non-exhaustive enumeration of included crimes.390 The reluctance to make an explicit statement on the legality of universal jurisdiction was also apparent in the vague statement made by the United States at the Kampala Conference. It used language of political, instead of legal, concern. It wondered whether it was “appropriate” for one State to prosecute its neighbor’s leaders for the crime of aggression and deplored that such cases would “highly unlikely…promote peace and security”.391 States also tend to forgo making comments on the legislative practice of other States which is presented at the Sixth Committee of the UN General Assembly in reports or statements.392 The failure to react may be evidence of opinio iuris that the practice was not contrary to international law.393 This is notably the case if a reaction would have been called for because the practice affects the interests of the State.394 It is irrelevant whether the State remained silent for political reasons.395 However, it is not the mere existence396 but rather the application of domestic laws which normally generates the attention of other States.397 It thus seems that the non-reaction to laws at the Sixth Committee carries less probative value than the non-reaction to their application.398 This silence on the legislative establishment of universal jurisdiction 389

This author has not found any in the official records of the Review Conference of 2010, when States included a definition of the crime of aggression and agreed on conditions for the exercise of jurisdiction, or the 16th session of the Assembly of States Parties, when States Parties activated the jurisdiction over the crime of aggression. See https://asp.icc-cpi.int/sessions/documentation. Accessed 15 September 2022. 390 In the 74th session of the UN General Assembly, only Mexico mentioned crimes of aggression among the crimes to which countries applied universal jurisdiction, see UN General Assembly 2020a, p. 2. Other States, however, tend to use non-exhaustive terms like “such as”, “including” and “or other crimes” for their enumeration of crimes, see, e.g., Australia (also on behalf of Canada and New Zealand) in UN General Assembly 2019, p. 5; Liechtenstein in UN General Assembly 2019, p. 4. 391 Reprinted in Koh and Buchwald 2015, p. 274. 392 The establishment of universal jurisdiction over the crime of aggression has been reported by Slovenia 2020; Georgia 2016. 393 ICJ, Fisheries Case (United Kingdom v Norway), Judgment, 18 December 1951, ICJ Reports 1951, p. 116, p. 139; see Commentary to Draft Conclusion 10, International Law Commission 2018a, para 8; Akehurst 1976, p. 39; Roberts 2001, p. 777. 394 See Commentary to Draft Conclusion 10, International Law Commission 2018a, para 8. The second requirement is fulfilled at the Sixth Committee. States are “in a position to react” because they are informed by the practice. 395 Akehurst 1976, p. 39, who stresses that the “motives of the States concerned are irrelevant”, “what counts is what [a State] says or refrains from saying in public, not what [it] secretly believes”. States may remain silent out of diplomatic prudence or lack of interest, see Crawford 2019, p. 23. 396 Although an extension of prescriptive jurisdiction may already interfere with the sovereignty of other States which are informed about the practice of other States at the Sixth Committee. 397 The former only provides the latent option for domestic courts to exercise universal jurisdiction. See Gärditz 2006, p. 165. 398 Akehurst 1976, p. 40. But he still considers that the failure to protest the enactment of a law has “some significance”.

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can still be considered when ascertaining customary international law, as was done in the famous Lotus case.399 The non-reaction of slightly higher probative value, in contrast, is the silence of States on the initiation of criminal investigations in Lithuania and Latvia regarding the crime of aggression allegedly committed in the Russia-Ukrainian war in 2022. Although investigations have not yet led to a criminal trial against a specific person, they can be perceived as a first application of the legislative establishment of universal jurisdiction over the crime of aggression.

7.7.4.5

Other Forms of State Practice

Other instances of State practice worth discussing are model laws and the Preamble of the ICC Statute in light of Understanding 5 of the Kampala Amendments. Model laws are drafted to guide States in their implementation of the ICC Statute. They are mostly adopted by States at international organizations or intergovernmental conferences. Although they are of pre-legislative and non-binding nature,400 they can provide relevant evidence for a rule of customary international law.401 The Commonwealth Model Law approved by the Commonwealth Law Ministers402 considered it to be “premature” in 2011 to give guidance on the implementation of the crime of aggression in domestic law.403 In contrast, the Arab Model Law,404 adopted by the Arab Justice Ministers Council in 2005,405 provided for (conditional) universal jurisdiction over all crimes enshrined in the Model Law.406 This includes the crime 399

When discussing the lawfulness of extending criminal law to offences with effects on the territory, the Permanent Court of International Justice stated: “Again, the Court does not know of any cases in which governments have protested against the fact that the criminal law of some country contained a rule to this effect or that the courts of a country construed their criminal law in this sense.” See PCIJ, The Case of the S.S. “Lotus”, Judgment, 7 September 1927, PCIJ Ser. A n°10, p. 23. 400 For the non-binding nature of the Commonwealth Model Law, see Commonwealth Secretariat 2017. For the Arab Model law, see El Zeidy 2017, p. 980. 401 See on non-binding resolutions adopted by an international organization or an intergovernmental conference Draft Conclusion 12(2) as well as Commentary to Draft Conclusion 12, para 2 in International Law Commission 2018a. Similarly, Koskenniemi 2005, pp. 431 et seq. 402 It was elaborated by an expert group. For background information, see Commonwealth Secretariat 2017, p. 2. 403 Commonwealth Secretariat 2017, p. 58. 404 Its original version was drafted in 2002 by members of the legal advisory section of the International Committee of the Red Cross, Cairo delegation, and was later amended several times before its adoption. On the drafting history of the Arab Draft Model Law, see El Zeidy 2017, pp. 967 et seq. On the Model Law, see also Reisinger Coracini 2017, pp. 1049 et seq. 405 This is one of the specialized councils where Ministers of Justice from the Arab League States meet. On the Arab Justice Ministers Council, see http://www.leagueofarabstates.net/ar/councils/ ministerialcouncil/Pages/MCouncilAbout.aspx?RID=11. Accessed 15 September 2022. 406 See Article 2 of the Arab Model Law: “The provisions of this law shall apply regardless of the place of commission of the crimes stipulated therein, if any of the following conditions is fulfilled– If the accused person is a national of the State.– If the accused is present on the territory of the

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of aggression.407 It could be argued that Arab States expressed the view that exercising universal jurisdiction over the crime of aggression is legal. This should be given particular attention given that Arab States may count as “specially affected States”.408 However, the outstanding implementations409 can be held against giving too much weight to the affirmed applicability of universal jurisdiction. Moreover, the Preamble of the ICC Statute has been interpreted by scholars as recognition by the States Parties of the customary right to exercise universal jurisdiction over the “most serious crimes of concern to the international community”.410 The Preamble affirms that these crimes “must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”.411 This subtle recognition of a customary right to exercise universal jurisdiction seems to include the crime of aggression. It was undefined when the Statute was adopted in 1998 but always listed in Article 5(1)(d) of the ICC Statute as one of the “most serious crimes” of international concern. The constructively ambiguous412 Understanding 5 of the Kampala Amendments does not necessarily express the contrary view of more than 120 States Parties in 2010 when they inserted a definition of the crime of aggression. According to Understanding 5, “it is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.”413 The inability of the Kampala Amendments to be the source of a right, however, does not necessarily affect the declaratory recognition in the Preamble of a right outside of the ICC Statute. The language of Understanding 5 was intentionally innocuous to placate the United States and to be acceptable to all delegations.414 This has led Germany to conclude in an oral intervention at the State after committing the crime.– If the victim is a national of the State.” See on the jurisdictional regime in general, El Zeidy 2017, pp. 971 et seq. 407 See Article 13 of the Arab Model Law. On the differences to the definition of the ICC Statute, see Reisinger Coracini 2017, pp. 1050 et seq. 408 For “specially affected” States, see in general Heller 2018, pp. 207 et seq., who claims that States who have more to gain or lose in case a practice becomes prohibited or permissible are “specially affected”. Arab States have often complained of being victims of aggression committed by foreign States and have therefore a higher interest to confirm the legality of universal jurisdiction over the crime of aggression. For an overview of the complaints, see El Zeidy 2017, pp. 960 et seq. 409 On the reluctance of Arab States, see El Zeidy 2017, pp. 983 et seq. 410 See Kreß 2000, p. 169 whereby such a right “clearly emerges from the preamble”. See also Condorelli 1999. For more cautious language, see Kreß 2006, p. 574. 411 See ICC Statute, Preamble, para 4. 412 On the different interpretations, see, e.g., van Schaack who assumes a “subtle preference” against the exercise of jurisdiction by other States than the aggressor: State van Schaack 2012. See, in contrast, those that assume that it merely states the obvious, namely that the ICC Statute does not create the right or obligation for any state with respect to domestic legislation and adjudication, e.g., Clark 2010, p. 705 fn. 57; Jurdi 2013, p. 144; Kreß and von Holtzendorff 2010, p. 1216; McDougall 2021, p. 376; Wrange 2017, p. 720. 413 See Review Conference of the Rome Statute 2010, Annex III. 414 On the genesis of Understanding 5, see Kreß et al. 2012, pp. 93 et seq.; Schabas 2016, pp. 317 et seq.

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Kampala Conference that the universal jurisdiction of a State Party over the crime of aggression should not be affected by such an understanding.415 Thus, Understanding 5 of the Kampala Amendments is neither supportive nor explicitly dismissive of the applicability of universal jurisdiction.

7.7.4.6

Academic Literature as a Subsidiary Means

Academic literature, which can serve as a subsidiary means for the determination of rules of customary international law,416 offers a heterogeneous picture. Among the international expert groups that produced documents on this question in the pre-Kampala era,417 the International Law Commission famously rejected the extension of universal jurisdiction to the crime of aggression in its 1996 Draft Code of Crimes.418 Its reasoning, however, is criticized for being unfounded in customary international law.419 The Princeton Principles on Universal Jurisdiction420 and the Siracusa Draft,421 in contrast, affirm the inclusion of the crime of aggression under universal jurisdiction.422 The Association Internationale de Droit Pénal and 415

Zhou 2017. See International Law Commission 2018a, Draft Conclusion 14. See ICJ Statute, Article 38(1)(d). 417 On the relevance of non-binding documents of international expert groups for the determination of customary international law, see Draft Conclusion 14 in International Law Commission 2018a, para 5; Gärditz 2006, p. 168. 418 See Article 8 in International Law Commission 1996. 419 The far-reaching limitation of domestic jurisdiction to the aggressor State is based on the principle of par in parem non habet imperium, which has a vague origin and is criticized for not being founded in State practice, see Strapatsas 2010, pp. 451 et seq.; Wrange 2017, pp. 711 et seq. See also Chap. 8, Sect. 8.2. 420 See Macedo 2004b, p. 21–25. They were adopted in 2001 by an international expert group. They aimed to be “useful to legislators seeking to ensure that national laws conform to international law”, see The Princeton Principles on Universal Jurisdiction 2004, p. 20. Kontorovich 2004, p. 185 who describes them as a “Restatement” of the universal jurisdiction doctrine. 421 This was an alternative draft statute to the one of the International Law Commission for the to-be-established International Criminal Court at that time which was drafted by a committee of “distinguished experts, acting in their private capacity, but representing some of the most prestigious international legal societies in the word”, see Ferencz 2000, p. 59. 422 For the Princeton Principles, see Principle 1(2) which establishes universal jurisdiction, conditioned upon the presence of the accused, over “serious crimes under international law”, and Principle 2(1) which specifies these crimes and also lists “crimes against peace”. The inclusion of “crimes against peace” in the enumeration of “serious crimes under international law” was discussed at length in Princeton, as some contended at that time that “defining the crime of ‘aggression’ [was] in practice difficult and divisive”. In the end, it was included, despite some disagreement, in part to recall the wording of the IMT Charter. See Macedo 2004a, p. 30. The Committee on the Siracusa Draft agreed that aggression was not only “prohibited by international law” but was “deemed part of jus cogens… subject to universal jurisdiction.” Ferencz 2000, p. 59 who cited from Siracusa Draft, submitted on 15 March 1996 by M. Cherif Bassiouni, President of the Association Internationale de Droit Pénal, on behalf of seven other leading organizations. 416

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the Institut de Droit International assessed the question without addressing the crime of aggression, whose updated definition was yet to be adopted.423 Other academic contributions tend to follow this cautious approach. They acknowledge that the question of whether universal jurisdiction extends to the crime of aggression is controversial.424 Others reject universal jurisdiction over the crime of aggression, particularly due to the limited State practice.425 Some question the relevance of the judicial precedents stemming from the unsettled era immediately following World War II.426 They also reference the reasoning of the International Law Commission’s Commentary to the 1996 Draft Code that domestic jurisdiction, other than by the aggressor State, would require one State to sit in judgment over another State.427 Some interpret Understanding 5 of the Kampala Amendments as expressing a preferred restriction to aggressor State jurisdiction.428 Others counter that there is nonetheless “some authority for the legality of the exercise of universal jurisdiction with respect to the crime of aggression”, such as the opinion delivered by Lord Millett in the Pinochet case.429 They also point out that it is contradictory not to apply universal jurisdiction, although the crime of aggression is most explicitly directed against world peace and thus against a fundamental value of the international community.430 It is more difficult to find scholars who take a firm stance in favor of universal jurisdiction over the crime of aggression.431 Some claim that it is at least conceivable to exercise universal jurisdiction over the Nuremberg version of the crime of aggression that attained the status of customary international law.432 Those who provide detailed reasoning emphasize the precedent set by the International Military Tribunal at Nuremberg. This gave rise to a customary right to exercise universal jurisdiction433 423

See, e.g., Association Internationale de Droit Pénal, Resolution on Universal Jurisdiction (2009), XVIIth Congress AIDO-IAPL which states in a general language that “states should establish universal jurisdiction to investigate, prosecute and punish the most serious crimes of concern to the international community as a whole and particularly those defined in the Statute of the International Criminal Court.”; Institut de Droit International, Resolution on Universal Jurisdiction (2005), operative para 3a) which acknowledges in a tautological way the right to exercise universal jurisdiction over “international crimes identified by international law as falling within that jurisdiction” and then lists in a non-exhaustive manner examples of these crimes without mentioning the crime of aggression. 424 Clark forthcoming; Dinstein 2017, para 164; Gaja 2002, p. 432; Ruys 2017, pp. 28 et seq., fn. 89; Stahn 2019, p. 98, fn. 606. 425 Akande 2010, pp. 33 et seq.; Koh and Buchwald 2015, p. 275; Ambos 2013, p. 230; van Schaack 2012, p. 143. 426 Akande 2010, p. 35; Koh and Buchwald 2015, p. 275; van Schaack 2012, p. 143. 427 Koh and Buchwald 2015, pp. 274 et seq.; van Schaack 2012, p. 149. 428 Oeter 2013, pp. 120 et seq.; van Schaack 2012, p. 135. 429 Schabas 2016, p. 317. 430 Werle and Jeßberger 2020b, para 1599. 431 But see Chadwick 2019, who bases his view on the piracy analogy; Ferencz 2009, p. 285; Hoven 2014, pp. 357 et seq.; Mills 2009, p. 1322; Safferling and Kirsch 2012, p. 486. 432 McDougall 2021, p. 384. For a concurring view, see Cormier 2020, p. 181; Shaw 2021, p. 577. 433 See, in particular, Scharf 2012. See also Wrange 2017, p. 719.

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that continues to exist unless a contrary customary rule has formed.434 Alternatively, they engage in a more principle-based reasoning.435 The Russian invasion of Ukraine has generated academic reactions of similar heterogeneity.436

7.7.4.7

Conclusion to the Inductive Approach

The collected instances of State practice do not give a clear answer to whether there is a customary permissive rule to establish universal jurisdiction over the crime of aggression. According to this author, such a permissive rule can be assumed under an inductive approach by giving weight to the practice of the International Military Tribunal at Nuremberg. If the International Military Tribunal also exercised universal jurisdiction, Nuremberg led, together with the IMT Charter and the subsequent endorsement by the international community, to a “Grotian moment”. This gave rise to a respective customary permissive rule with unusual rapidity, despite limited State practice. Due to the self-perception of the Tribunal that States did “together what any one of them might have done singly”, the crystallized rule also applies at the domestic level. Under this assumption, which is shared by Scharf and Wrange,437 the moderate number of supportive and dismissive aggression-specific practice later generated at the domestic level is immaterial. Additional supportive State practice is not required for a rule which has acquired the status of customary international law. Dismissive State practice only changes the customary rule if it amounts to “general practice accepted as law”. The State practice that followed is too limited and inconsistent to give rise to a contrary customary rule. Since a right to exercise universal jurisdiction does not oblige a State to do so, the legislative inaction of most States cannot be interpreted as rejecting such a right. Moreover, only four out of 16 implementers of the Kampala Amendments decided not to extend universal jurisdiction to the crime of aggression. Statements at international conferences do not clearly reject universal jurisdiction regarding the crime of aggression. They tend to omit the crime of aggression, but their enumeration of crimes is mostly non-exhaustive. While being a promising candidate in terms of “generality” due to its adoption by over 120 States, Understanding 5 of the Kampala Amendment uses language which was kept as innocuous as possible. These ambiguous instances of State practice are referred to by several scholars to argue that States have no right to exercise universal jurisdiction over the crime of aggression. The allegedly dismissive instances, however, are inconsistent with the limited but existing State practice that affirms the existence of 434

Wrange 2017, p. 719. See Hoven 2014, pp. 364 et seq., where she assumes that the categorization as a crime under international law is a strong indication for the application of universal jurisdiction, perceives Understanding 5 of the Kampala Amendments as an expression of the US interests only, refers to Scharf ’s reasoning on the basis of the Nuremberg precedent and refers to the Princeton Principles. 436 See the blog posts on this matter, e.g., Dannenbaum 2022; Vasiliev 2022. 437 Albeit the latter not under the term of a “Grotian moment”. See Wrange 2017. 435

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such a right at the domestic level. Among the instances of affirmative State practice are: universal jurisdiction provisions in 20 to 30 States, the initiation of criminal investigations by Lithuania and Latvia after the Russian invasion of Ukraine in 2022, the non-reaction of States to these laws and investigations, arguably Lord Millett’s opinion in the Pinochet case, the view of States of the Arab League as expressed in the Model Law and its vague recognition in the Preamble of the ICC Statute. Considering the inconsistent State practice that was generated at the domestic level, it can be assumed that there is still a customary right to exercise universal jurisdiction over the crime of aggression at the domestic level. This right is mainly based on the practice of the International Military Tribunal at Nuremberg, the IMT Charter, as well as on the subsequent endorsements by the international community. It has not been rebutted by contrary general practice at the domestic level. Various arguments can be raised against this assumption of a customary right. While it is difficult to question that the International Military Tribunal also exercised universal jurisdiction, it could be doubted whether the international community endorsed the implicitly claimed right to exercise universal jurisdiction over the crime of aggression. The UN General Assembly Resolution 95(I) only affirmed, in a blanket fashion, the principles recognized by the Charter or the judgment of the International Military Tribunal. Given that universal jurisdiction was not included in the Nuremberg Principles, as later elaborated by the International Law Commission, it might not have been among the principles the international community had in mind in its endorsement. One may also be skeptical about drawing conclusions from Nuremberg for the domestic level. For claiming the same right of States at the domestic level, skeptics would require affirmative aggression-specific practice from the domestic legislative, executive and judicial branch. Even under a generous context-sensitive approach, it is difficult to assume that State practice at the domestic level has reached the threshold to be “general”. Among the identified affirmative instances are: legislation in less than a fifth of all domestic legal orders, two criminal investigations after the Russian invasion of Ukraine in 2022, the non-reaction of States to these laws and investigations, the separate opinion of a UK judge, a model law which has not achieved widespread implementation and the vague Preamble of the ICC Statute. The inhibitory context of a rare and long neglected crime with State involvement cannot make up for the limited State practice. The reactions to the Russian invasion of Ukraine may thus be a chance to confirm, or reject, the assumed right to exercise universal jurisdiction for those skeptical of the force of the Nuremberg precedent.

7.7.5 Deductive Approach: Principle-Based Reasoning A customary right to exercise universal jurisdiction over the crime of aggression can be assumed with the support of deductive reasoning, even if Nuremberg is rejected as the birthplace of the customary right and the otherwise existing supportive State practice at the domestic level cannot be considered as “general”.

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As elaborated above, the establishment of customary international law based on general practice and opinio iuris does not preclude the integration of deductive reasoning “as an aid”.438 Whenever a rule of customary international law can be deduced from an existing underlying principle, this logical rule can “confirm the results reached by induction, replace or lower the standard of inductive evidence”.439 Different principle-based reasoning may support what limited State practice at the domestic level vaguely suggests, namely the right of States to exercise universal jurisdiction to prescribe with respect to aggression. The following sections are limited to three principle-based reasonings.440 The first relies on reasoning by analogy from the classical universal jurisdiction case of piracy (“piracy analogy”). The second perceives universal jurisdiction as a reaction to a violation of an erga omnes obligation which arises from a ius cogens norm. The third reasoning deduces the authority to exercise universal jurisdiction from the nature of “crimes under international law”.

7.7.5.1

The “Piracy Analogy”

As its name suggests, the “piracy analogy”441 uses reasoning by analogy442 to extend the principle of universal jurisdiction from its most classical and broadly recognized case of piracy to other crimes.443 The “piracy analogy” was used by the Israeli judges in the Eichmann case.444 The comparison between pirates and perpetrators of crimes under international law was also drawn by the US Prosecutor Robert Jackson and by the UK Prosecutor Sir Hartley Shawcross at the International Military Tribunal at Nuremberg.445 The 438

See Commentary to Draft Conclusion 2, International Law Commission 2018a, para 5 See also Kreß 2012, p. 251. For a concurring view, see Gärditz 2007, pp. 24 et seq. 439 Talmon 2015, p. 427. See also Worster 2014, p. 514. See also the amicus brief by Kreß: “Nothing in the concept of customary international law speaks against holding States to the principles they have articulated in their (verbal) practice and nothing precludes the deduction of rules of customary international law from such principles if the content of such rules naturally flows from such principles.” See Kreß 2018, para 9. 440 For a detailed analysis of available principle-based reasonings, see Gärditz 2006, pp. 211 et seq. 441 On the “piracy analogy”, see in detail Chadwick 2019; Kontorovich 2004. 442 On the reasoning by analogy in customary international law, see Vöneky 2008. 443 For the recognition of piracy as a universal jurisdiction crime, see Article 9 of the Draft Convention on Jurisdiction with Respect to Crime, drafted by the Harvard Research in International Law in 1935, reprinted in Grant and Barker 2007, p. 488; Benavides 2001, p. 27; Kontorovich 2004, p. 190; Randall 1988, p. 791; see also ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports 2002, p. 3, para 61. 444 See Supreme Court of Israel, Attorney-General of Israel v. Eichmann, Judgment, 29 May 1962, 36 ILR 1968, p. 300; District Court, Attorney-General of Israel v. Eichmann, Judgment, 12 December 1962, 36 ILR 1968, pp. 25 et seq. 445 Albeit rather regarding the principle of individual criminal responsibility, see Jackson 1947, p. 88 (“The principle of individual responsibility for piracy and brigandage, which have long been recognized as crimes punishable under International Law, is old and well established. That is what

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comparison between pirates and aggressors was made in an anecdote by Augustine de Hippo. When the emperor Alexander the Great asked a pirate what he meant by infesting the seas, the latter answered: “The same thing as you mean by infesting the world; but because you do it with a great fleet, you are called an emperor, and because I do it with a small ship, I am called a pirate.”446 Reasoning by analogy is not purely deductive but combines induction and deduction.447 It compares specific regulated cases with specific unregulated cases. This necessarily includes generalization to identify the relevant criteria for the rule to apply. The “regulated case” of piracy and the “unregulated case” of the crime of aggression need to be comparable with respect to the relevant criteria for universal jurisdiction. These criteria are the heinous nature of piracy as an attack on the vital interests of the international community and its commission beyond State control.448 In the further process of abstraction, these criteria became known as the “normative” justification of universal jurisdiction and the “pragmatic” justification of universal jurisdiction.449 The crime of aggression resembles to piracy. It is also a “heinous crime”,450 given that it affects an agreed “vital interest of the international community”. While the freedom of maritime trade might have been a vital interest at that time,451 international peace is today the vital interest of the international community.452 The crime of

illegal warfare is.”); see Sir Hartley Shawcross in The Trial of German Major War Criminals before the International Military Tribunal (1947, p. 106) (“Nor is the principle of individual international responsibility for offenses against the law of nations altogether new. It has been applied not only to pirates. The entire law relating to war crimes as distinct from the crime of war, is based upon the principle of individual responsibility.”). 446 See Saint Augustine of Hippo, De civitate Dei, IV, 4. Cited in Hollingworth 2013, p. 55. See also Brotóns 2008, p. 194. 447 Hassemer et al. 2011, p. 130. 448 See Bohle 2018, pp. 122 et seq.; Chadwick 2019, pp. 147 et seq.; Randall 1988, pp. 792 et seq.; Scharf 2007, pp. 276 et seq. For a critical view on the heinous nature of piracy, see Kontorovich 2004. 449 See, e.g., Ambos 2013, p. 225. For these two justifications of universal jurisdiction, see also UN General Assembly 2010, paras 10 et seq. 450 According to Chadwick, the “heinousness” of piracy is shaped by several factors, such as the threat to an “agreed vital interest of the international community” and the indiscriminate effect on all states and not only on the merchants whose goods fell victim to pirates. See Chadwick 2019, pp. 149 et seq. The indiscriminate effect can be assumed for the crime of aggression due to its basis in ius cogens which gives rise to obligations erga omnes whose violation affects all members of the international community. 451 See Chadwick 2019, pp. 197 et seq., who also assumes that “vital interests” of the international community are a dynamic concept. 452 For today’s vital interests of the international community see Article 1(1) of the UN Charter (“international peace and security”); Preamble of the ICC Statute (“peace, security and well-being of the world”). On the term of “interests of the international community” or “community interests”, see Geneuss 2013, pp. 72 et seq.; Villalpando 2010, pp. 390 et seq.

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aggression violates international peace as suggested in the ICC Statute453 as well as by the underlying prohibition of the use of force in the UN Charter.454 The statements made in response to the Russian invasion of Ukraine confirm that aggression is perceived as an attack on the vital interests of the international community.455 Whether the crime of aggression fulfills the second relevant criterion for universal jurisdiction to apply is more controversial. If the required “commission beyond State control”456 is understood to emphasize the commission with impunity, aggression is comparable to piracy. The crime of aggression is certainly not committed in the “legal vacuum of the oceans”,457 but typically on the territory of at least two States. Nonetheless, it resembles piracy by being committed in the “legal vacuum of criminal justice”. The crime of aggression can per definitionem only be committed by “a person in a position effectively to exercise control over or to direct the political or military action of a State”.458 This is why aggressors are closely linked to the power structures of a State and may be able to obstruct criminal investigations.459 This risk of impunity caused by the leadership clause is neither considerably reduced by the limited ability of the International Criminal Court to prosecute aggressors.460 The Russian invasion of Ukraine in 2022 was ordered by Putin in the “legal vacuum of criminal justice”. The International Criminal Court is currently unable to exercise jurisdiction over the crime of aggression committed by nationals of Russia, a nonState Party. The comparison of piracy and the crime of aggression can be questioned, however, if the unique place of commission for piracy is emphasized.461 Crimes committed on the high seas do not provoke significant competing claims of jurisdiction.462 The crime of aggression, in contrast, is committed on the territory of at least two States,

453

ICC Statute recognizes in Article 5 the nature of the crime of aggression as one of “most serious crimes of concern to the international community as a whole” and presumes in the Preamble that it threatens the “peace, security and well-being of the world”. See also Chap. 3, Sect. 3.4. 454 The underlying prohibition of the use of force equally affects international peace if violated, see Randelzhofer and Dörr 2012, para 12. See also Chap. 3, Sect. 3.4.3. 455 See, e.g., UN General Assembly 2022; UN Human Rights Council 2022; European Union 2022. 456 Chadwick 2019, pp. 156 et seq. See also Bohle 2018, pp. 124 et seq. 457 Chadwick 2019, p. 157 Piracy may still fall into the scope of passive personality, nationality and the flag principle, see Benavides 2001, p. 45; Bohle 2018, pp. 125 et seq., 132; Gärditz 2006, p. 217. 458 ICC Statute, Article 8bis(1). 459 On the risk of obstructing justice in case of the involvement of the State apparatus in the commission of any core crime, see Chadwick 2019, p. 218; Langer 2011, pp. 5 et seq. 460 See Chap. 5. 461 Piracy is per definitionem committed “on the high seas or in any other place outside the jurisdiction of any State”, see Convention on the Law of the Sea of 29 April 1958 (450 UNTS 11), Articles 100, 101. See more generally Gärditz 2006, p. 217. 462 Even if piracy may still fall under the jurisdiction of the State of nationality of the victim or of the perpetrator or of the flag State. See Benavides 2001, p. 45; Bohle 2018, pp. 125 et seq., 132; Gärditz 2006, p. 217.

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which can provoke competing claims of jurisdiction.463 The comparison can also be questioned due to the perception of pirates as stateless, apolitical beings,464 who act “for private ends”.465 Aggressors can only be persons from the leadership circle of a State who are mostly not apolitical low-cost perpetrators.466 In that regard, the crime of aggression does not share the characteristics which facilitated the assumption of a right of third States to exercise jurisdiction over piracy.467 Due to these differences, reasoning by analogy is precluded. It therefore appears warranted to discuss other principle-based reasonings that could better justify the applicability of universal jurisdiction to the crime of aggression.

7.7.5.2

Reasoning Based on Ius Cogens and on the Violation of an Erga Omnes Obligation

The right of States to exercise universal jurisdiction can be explained as a reaction to a violation of an erga omnes obligation which arose from the ius cogens basis of the crime.468 To recall the considerations from Chap. 2, crimes under international law are based on ius cogens norms.469 Norms of ius cogens “reflect and protect fundamental values

463

On the transboundary nature of aggression, see Clark 2010, p. 705; see also Barriga and Kreß 2011a, pp. 629 et seq., paras 28 et seq.; Barriga and Kreß 2011b, paras 38–39. 464 Chadwick 2019, p. 224. 465 See Convention on the Law of the Sea, 29 April 1958, Article 100. 466 Although aggressors do not need a formal position of control or direction according to Article 8bis(1) of the ICC Statute, their de facto position among the leadership circle of a State and the requirement of a State act of aggression have led some to assume that it is a “political crime”. See Creegan 2012, p. 59. For a discussion, see Reisinger Coracini and Wrange 2017, pp. 331 et seq. 467 See Benavides 2001, p. 45, whereby the fact that the crime of piracy was committed in a place without sovereign “made it easier to apply the concept of universal jurisdiction”. See also Gärditz 2006, p. 216, fn. 402. 468 See ICTY (TC), Furundžija, Judgment, 10 December 1998, para 156 which states with respect to torture that “one of the consequences of the jus cogens character bestowed by the international community…is that every State is entitled to investigate, prosecute and punish…This legal basis for States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction by other courts…”. See the opinion of Lord Millett in House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 275. See also the opinion of Lord Browne-Wilkinson in the same case, p. 198. See also Bassiouni 1996, p. 63; Cassese 2005, p. 208; Kreß 2000, p. 169 (“The power to exercise universal jurisdiction may therefore be conceptualized as the legal vehicle by which States, acting on behalf of the international community, may respond to the individual’s violation of an international obligation erga omnes.”); Randall 1988, pp. 829 et seq.; Scharf 2007, p. 302. For a critical discussion, see Gärditz 2006, pp. 221 et seq. On the relationship of universal jurisdiction, obligations erga omnes and ius cogens norms, see, e.g., Brown 2001. 469 See Chap. 2, Sect. 2.6.3.

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of the international community”470 and give rise to obligations erga omnes.471 The crime of aggression is based on the prohibition of aggression, which has the status of ius cogens472 and gives rise to an obligation erga omnes to abstain from aggression. The obligation to abstain from aggression is not only addressed to States, but also to individuals.473 As a consequence, States and individuals owe the obligation to abstain from aggression erga omnes, towards the international community as a whole. A breach of the obligation therefore affects all States.474 It is debatable whether States are entitled to exercise universal jurisdiction in response to such a violation of an obligation erga omnes, which arises from a ius cogens norm.475 Unlike its effect in international treaty law,476 and the law of State responsibility,477 the effects of ius cogens in international criminal law are controversial.478 If universal jurisdiction is claimed in reference to the ius cogens basis of the crime, or the related erga omnes obligation, detailed reasoning is not always provided.479 The following sections seek to find explanations. These are mainly inspired by the accepted consequences of ius cogens in international treaty law and the law of State responsibility. The envisaged parallel reasoning can be objected to for ignoring the frontiers between the fields of law and for its partial independence from State practice. However, this “semi-deductive approach”480 is preferable to the 470

Draft Conclusion 3 in International Law Commission 2019. Similarly, Evans 2018. See also Bassiouni 1996, p. 69. 471 See Draft Conclusion 17(1) in International Law Commission 2019. An obligation “erga omnes” means an obligation “towards everyone” and shall be contrasted to an obligation “inter partes”, between the parties. See also ICJ, Case Concerning the Barcelona Traction (Belgium v Spain), Judgment, 5 February 1970, ICJ Reports 1970, p. 3, para 33; Weatherall 2015, p. 351. 472 See Chap. 2, Sect. 2.6.3. 473 See Chap. 2, Sect. 2.6.3. At least a subsection of the prohibition of aggression, namely the manifest violations of the prohibition of the use of force, see Article 8bis of the ICC Statute. Similarly with respect to war crimes, Kreß 2000, pp. 112 et seq. 474 See also Randall 1988, p. 831 whereby “[v]iolations of obligations erga omnes and jus cogens norms affect all states, whether committed by state actors or individuals.” See also Kreß 2002, pp. 836 et seq. (“Verletzungswirkung erga omnes”). 475 For a critical view, see, e.g., Focarelli 2008, pp. 450 et seq. 476 See VCLT, Article 53, first sentence; VCLT, Article 64. 477 See Article 41 in International Law Commission 2001. 478 Crawford 2019, p. 582; Jennings and Watts 2008, p. 8; van Steenberghe 2011, p. 1092. Due to controversy, the International Law Commission recently abstained from adopting any draft conclusion on the effect of ius cogens in the field of international criminal law, see Draft Conclusions 22 and 23 International Law Commission 2018b, p. 68. Instead, it adopted a “without prejudice” clause, see Draft Conclusion 22 in International Law Commission 2019. 479 See, e.g., opinion of Lord Browne-Wilkinson in House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 198 who merely asserts universal jurisdiction because offenders are “common enemies of all mankind” and all nations “have an equal interest in their…prosecution”. 480 For a critical discussion of the semi-deductive approach consisting of empirically proving that a certain jus cogens effect is produced in one legal context and inferring a different effect in another context, again without apparently any need to specifically test the effect thus inferred against international practice, see Focarelli 2008, pp. 446 et seq.

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little substantiated claim of an automatic right to exercise universal jurisdiction over crimes with ius cogens basis. Under international treaty law, ius cogens has an overriding power vis-à-vis contrary interests of States.481 It renders treaties void.482 This overriding effect could be transferred to the law of jurisdiction by invalidating contrary sovereignty interests of the aggressor State towards the exercise of jurisdiction by third States. In the Furundzija case, the International Tribunal for the Former Yugoslavia asserted that every State was entitled to exercise jurisdiction over torture by making an inference from the effects of ius cogens in treaty law. It held that “it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty-making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad”.483 Such reasoning, however, requires a stretch from the situation of two contracting States to a situation where the link to the other State is only established by the unilateral exercise of jurisdiction by a State. Equally problematic is a parallel reasoning considering the effects of ius cogens under the law of State responsibility. The right to exercise universal jurisdiction to establish individual criminal responsibility could be perceived as a parallel right to the right to peaceful countermeasures under the law of State responsibility.484 Countermeasures are peaceful unilateral reactions adopted against the State responsible for the international wrongful act.485 They aim to induce486 the responsible State to provide cessation or reparations.487 The exercise of jurisdiction over an individual aggressor somewhat resembles a countermeasure. First, it is directed against the territorial or personal authority of the aggressor State which is responsible, besides the individual aggressor, for the wrongful act.488 Secondly, universal jurisdiction and countermeasures aim to induce the responsible State to comply with its international obligations.489 Universal jurisdiction does not primarily aim to substitute the execution of another State’s obligation to hold the perpetrator accountable.490 According

481

In detail, see Chap. 2, Sect. 2.6.4.1. See VCLT, Article 53. 483 See ICTY (TC), Furundžija, Judgment, 10 December 1998, para 156. 484 See, in detail, Gärditz 2006, pp. 221 et seq. See also de Oliveira Moll 2003, pp. 575 et seq. 485 See Article 49(1) in International Law Commission 2001; Crawford 2013, p. 687; Dahm et al. 2002, p. 983. 486 See Article 49(1) and Article 54 in International Law Commission 2001; Crawford 2013, p. 677 See also Annacker 1994. 487 For a definition, see Paddeu 2015, para 1; see also Alland 2010, p. 1135; Crawford 2013, p. 685. 488 The situation of “dual responsibility” is not always the case when it comes to other core crimes. The exercise of universal jurisdiction over other core crimes can affect the territorial or personal authority of a State which is not necessarily responsible for the crimes if committed by persons whose actions cannot be attributed to the State. This is why parallel reasoning is rejected by Gärditz 2006, pp. 236 et seq. 489 For a contrary view, see Gärditz 2006, pp. 236 et seq. 490 In the sense of a “Ersatzvornahme”, the coercive means of “substitute performance”. 482

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to Jeßberger, “it is, arguably, an essential function of the exercise of universal jurisdiction by a ‘third state’ to stimulate (the so-called ‘Pinochet effect’) and support investigations and prosecutions in a state closer to the crime, such as the territorial state or the state of the nationality of the offender”.491 However, it is “extremely controversial”492 whether third States, meaning States other than the injured State, have a right to countermeasures for serious violations of erga omnes obligations arising from ius cogens. This “thorny issue”493 was left open by the International Law Commission in 2001.494 Customary international law might now have moved to a stage where third States are allowed to take countermeasures.495 This is particularly the case after reactions by States, other than Ukraine, to the Russian invasion.496 Due to its previously controversial nature, and despite the recent developments, the right of third States to countermeasures is not the most solid foundation for promoting a parallel right to exercise universal jurisdiction.497 More generally, and without making inferences from other fields of law, the right of States to exercise universal jurisdiction over crimes with a ius cogens basis could be explained by an effet utile reasoning. To ensure the effective protection of ius cogens, it is tempting to attach wider effects and the greatest possible realization mechanism to these norms.498 This means that the intended protection of the underlying ius cogens norm can be better achieved by removing obstacles from the path of accountability.499 One obstacle is the unwillingness or inability of States to exercise jurisdiction over their own or foreign State officials.500 Trials in the aggressor State 491

Jeßberger 2018b, p. 3. In that regard, a “successful” exercise of universal jurisdiction does not require the completion of a trial, it could merely consist in securing evidence for future proceedings of an international or domestic court. 492 See Dawidowicz 2017, pp. 4 et seq., who also provides a thorough assessment of the right of third States to countermeasures. 493 Crawford 2013, pp. 704 et seq. 494 The initial draft article on countermeasures provoked strong reactions. The Draft Articles of the International Law Commission ultimately adopted do not regulate countermeasures by States other than the injured State, but do not prejudice the right of third States “to take lawful measures against that [responsible] State to ensure cessation of the breach and reparation in the interest of the beneficiaries of the obligation breached” either. See the “without prejudice” clause of Draft Article 54 International Law Commission 2001. This clause has been described as being “of an ambiguity worthy of the oracle at Delphi” in that it leaves all options open. See Crawford 2013, p. 706. 495 See Dawidowicz 2017, p. 383, who has examined modern practice and assumes that there “is strong support for an affirmative answer” as to whether States are entitled to take third-party countermeasures under contemporary international law”. 496 E.g., in the form of economic or diplomatic sanctions against Russia for the act of aggression against Ukraine. 497 Similarly, but without specifically addressing the question of aggression, see Ambos 2020b, para 47; Gärditz 2006, p. 236. 498 Similarly, albeit in more general terms, see Thirlway 2019, p. 164. See also Bassiouni and Wise 1995, p. 52. 499 See also the interpretation of Bassiouni’s position by Seibert-Fohr 2009, p. 251. 500 See also Werle and Jeßberger 2020b, para 260, who note that there is “a chronic failure to prosecute crimes under international law” which can justify universal jurisdiction to allow third States to step in if “no state that is ‘closer’ to the crime is willing and able to prosecute the crimes”.

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are expected to be “either sham trials or non-existent”,501 or require a change of regime.502 Trials in the “all too willing”503 victim State may be hampered by practical challenges, such as arresting foreign high-level perpetrators. They may also suffer from bias. These estimations are shared by the first academic suggestions on how to hold Russian aggressors accountable for the invasion of Ukraine.504 Allowing third States to exercise jurisdiction increases the pool of States that can ensure the effective protection of the ius cogens norm. Bassiouni has engaged in such an effet utile reasoning and described universal jurisdiction as “the most effective method to deter and prevent international crimes by increasing the likelihood of prosecution and punishment of its perpetrators”.505 However, the effet utile reasoning suffers from an uncertainty as to what is necessary for the “effective protection” of the ius cogens norm. The most effective protection would be ensured by allowing States to exercise universal jurisdiction in an unconditional way, without any requirement of the presence of the suspect, and even with primacy over the jurisdiction of the possibly biased aggressor State and victim State.506 Arguing in such a purely deductive manner with the effect utile of ius cogens norms thus risks “to irradiate into an indefinable number of corollary normative propositions”.507 Therefore, it is preferable to use a semi-deductive approach, which builds on accepted consequences of ius cogens in other fields of law. This pays deference to the specificity of ius cogens but without completely detaching it from what is normally necessary to give rise to a specific customary right. However, the historically “extremely controversial”,508 but now more exercised right of third States under the law of State responsibility to conduct countermeasures is not the most solid foundation to assume a parallel right in the field of international criminal law. Hence, it is still controversial to justify universal jurisdiction as a reaction to a violation of an erga omnes obligation which arises from a ius cogens norm.

7.7.5.3

Reasoning Based on the Nature of “Crimes Under International Law”

A third principle-based reasoning infers the authority to exercise universal jurisdiction from the nature of “crimes under international law”.509 501

Trahan 2013, p. 590. Trahan 2013, p. 589; Wrange 2017, p. 742. 503 On this problem of “overzealous” victim states, see Trahan 2013, pp. 590 et seq. 504 See, e.g., Vasiliev 2022. 505 Bassiouni 2001, p. 153. 506 The present chapter does not seek to clarify the possible conditions of the exercise of universal jurisdiction over the crime of aggression, given that not only the specific content but the mere existence of such a right is questioned for the crime of aggression. 507 Kolb 2015, p. 110. 508 Dawidowicz 2017, pp. 4 et seq. 509 Benavides 2001, p. 86; Dinstein 1998, p. 19 (“the universality principle does not apply in an automatic fashion to all international offenses, although there seems to be a presumption today in 502

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International criminal law and universal jurisdiction are described as two sides of the same coin.510 This is because crimes under international law are directed against the fundamental interests of the international community as a whole.511 Their prosecution by third States cannot logically be an interference in the internal affairs of the territorial or national State.512 The universal condemnation of “crimes under international law”513 goes hand in hand with a universal right of States to ensure their prosecution.514 The deductive justification of universal jurisdiction based on the nature of the crime is supported by the cautious language used in documents adopted by international expert bodies, in statements made by States and by scholars.515 They agree that States have a right to exercise universal jurisdiction over “crimes under international law” without giving an exhaustive list of crimes that fall under this category. The crime of aggression falls into the category of “crimes under international law”. It was described by the International Military Tribunal at Nuremberg as the “supreme international crime”.516 It is also the crime with the most apparent connection to the fundamental interest of the international community in peace.517 As further explained in Chap. 3, no legal acrobatics is necessary to explain how aggression affects international peace.518 Only the crime of aggression has a predecessor that captures its detrimental effect on peace in its name as “crime against peace”.519 Only the crime of aggression has an underlying act whose peace-disturbing nature is explicitly recognized by the UN Charter. It enumerates as equivalents “acts of aggression or other breaches of the peace”.520 It is thus contradictory not to deduce the customary right

favor of such application.”); Geneuss 2013, p. 122; de Hoogh 1996, p. 164; Kreß 2000, p. 169 (“the customary State power to prosecute crimes under international law is derived directly from the latter’s conceptual structure”); Werle and Jeßberger 2020b, para 259. 510 Geneuss 2013, p. 122. 511 Werle and Jeßberger 2020b, para 107. 512 Ambos 2013, p. 226; Benavides 2001, p. 87; Bungenberg 2001, p. 187; Werle and Jeßberger 2020b, para 259. 513 They are by definition crimes that “involve individual responsibility directly under international law”, Werle and Jeßberger 2020b, para 97. 514 See also Werle and Jeßberger 2020b, para 259 (“It follows from this universal nature of international crimes that the international community is empowered to prosecute and punish these crimes, regardless of who committed them or against whom they were committed.”). 515 See, e.g., Werle and Jeßberger 2020b, para 259. 516 See IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. Similarly, the UN General Assembly and the International Law Commission have once accentuated the high gravity of aggression by describing it as “the gravest of all crimes against peace and security throughout the world”. See UN General Assembly 1950, para 1; Commentary to Article 2 in International Law Commission 1951. 517 In the same vein, Broomhall 2003, p. 46. 518 See Chap. 3, Sect. 3.4. 519 See IMT Charter, Article 6 (a) and IMTFE Charter, Article 5: “Crimes against Peace”. 520 Emphasis added. See UN Charter, Article 1(1).

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to exercise universal jurisdiction over the crime of aggression from its nature as a “crime under international law”.521 Nonetheless, it is difficult to ignore the discrepancy in statements of States and academic literature.522 On the one hand, they describe the crime of aggression as a “crime under international law” and claim in a different context universal jurisdiction over “crimes under international law”. On the other hand, they do not include the crime of aggression in non-exhaustive lists of typical crimes that fall under universal jurisdiction. This raises doubts about whether a right to exercise universal jurisdiction logically flows from the nature of aggression as a “crime under international law”. Such a principle-based reasoning, however, helps to build a bridge to the inductive assessment and its emphasis on Nuremberg as the birthplace of a right to exercise universal jurisdiction over the crime of aggression. If the Charter of the International Military Tribunal is considered as the “birth certificate” of international criminal law,523 and the Tribunal exercised universal jurisdiction over crimes that belong to this field of law, it can be claimed that international criminal law has never existed without universal jurisdiction.

7.7.5.4

Conclusion to the Deductive Approaches

The different principle-based reasonings are not equally convincing. A right to exercise universal jurisdiction over the crime of aggression does not naturally flow from aggression’s comparability with piracy or its ius cogens basis. The “piracy analogy” is objectionable due to the significant dissimilarities between piracy, committed on the high seas for private ends, and the crime of aggression, typically committed on the territory of at least two States by persons from the leadership circle of a State. Deducing a right to exercise universal jurisdiction from the ius cogens basis of aggression, particularly from accepted effects of ius cogens in other fields of law, hinges upon the historically “extremely controversial”,524 but now more exercised, right of third States to take countermeasures under the law of State responsibility. It is more convincing to deduce a right to exercise universal jurisdiction over the crime of aggression from its nature as a “crime under international law”. This builds a bridge to the perception of Nuremberg in the inductive assessment as a birthplace of a right to exercise universal jurisdiction over the crime of aggression. It claims that international criminal law has never existed without universal jurisdiction.

521

See also Jeßberger 2018a, p. 199. See the respective sections in the inductive approach. 523 Werle and Jeßberger 2020b, para 16. 524 Dawidowicz 2017, pp. 4 et seq. 522

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7.7.6 Conclusion: Applicability of Universal Jurisdiction to the Crime of Aggression According to the author, it is possible to assume a customary permissive rule to exercise universal jurisdiction over the crime of aggression. This can be achieved either under an inductive approach by emphasizing the practice of the International Military Tribunal at Nuremberg, or with support of deductive reasoning based on the nature of aggression as a “crime under international law”. The inductive approach argues that the practice of the International Military Tribunal at Nuremberg, together with the IMT Charter and the subsequent endorsement by the international community, led to an accelerated formation of a customary rule, which also applies at the domestic level. It has not since been rebutted by general practice. Skeptics would reject the applicability of the Nuremberg claim at the domestic level and require affirmative practice by the domestic judicial, legislative, and executive branch. The identified limited State practice only reaches the threshold to be “general” by using deductive reasoning as an aid. Instances of affirmative State practice include: Universal jurisdiction provisions in 20 to 30 States, the initiation of criminal investigations by Lithuania and Latvia after the Russian invasion of Ukraine in 2022, the non-reaction of States to these laws and investigations, Lord Millett’s opinion in the Pinochet case, the view of States of the Arab League as expressed in the Model Law and the vague recognition in the Preamble of the ICC Statute. This limited practice from the domestic level can still generate a customary right if combined with deductive reasoning that is based on the nature of “crimes under international law”. It assumes that international criminal law, which received its birth certificate in Nuremberg, has never existed without providing universal jurisdiction over crimes under international law. The right to exercise universal jurisdiction naturally flows from the classification of the crime of aggression as a “crime under international law”. Overall, using deductive reasoning to support the limited State practice from the domestic level is not necessarily better than the inductive approach that emphasizes the practice of the International Military Tribunal at Nuremberg. It does not address the uncertainty of the Nuremberg claim that there is a right to exercise universal jurisdiction for courts, irrespective of their international or domestic nature. The auxiliary deductive reasoning only emphasizes the importance of the nature of the crimes. In that regard, it ensures a coherent system of international criminal law.

7.8 Conclusion This chapter addressed how to specify the geographical ambit of domestic criminal jurisdiction over the crime of aggression.

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To avoid State responsibility and corrective interpretations by domestic courts, the legislative specification of the geographical ambit of domestic criminal jurisdiction needs to respect international law. This requires a “permissive rule” to rebut the presumed general prohibition under international law to extend jurisdiction to matters with a foreign element. The core of the chapter was devoted to the “principles of jurisdiction” under international law that may offer the “permissive rules”. The principle of nationality is the most uncontroversial one with respect to the crime of aggression. It gives States a right to exercise prescriptive jurisdiction over the aggressive conduct of their own nationals. Instead of limiting the criminalization to situations where it would typically be the aggressor State, a State can rely on the well-established principle of territoriality to exercise prescriptive jurisdiction to also cover situations in which it is aggressed. The broader scope of territoriality is due to the constituent elements of the crime of aggression which typically occur in the aggressor State and the victim State. Despite contrary allegations, the right of States to exercise territorial jurisdiction to prescribe is not challenged by the nationality of the perpetrator, or the nature of the crime. The place of commission is the only relevant factor for the principle of territoriality to apply. The constituent element of “gravity” is commonly limited to the effects of the act of aggression on the warring parties. This is why territorial jurisdiction does not extend to States that are not directly aggressed but suffer from the social, economic, or environmental effects of the crime of aggression. The protective principle allows States to criminalize aggression committed against them due to the respective judicial practice generated in the aftermath of World War II and deductive reasoning. Aggression affects the core sovereignty interests of a State and allows a technical form of self-defense. The added value to the broad scope of territoriality can be perceived in the extended understanding of the protective principle. The judicial practice after World War II and after the Russian invasion suggests an extension to allied or third States whose vital interests are threatened by the crime of aggression. The implementation of the passive personality principle would have an added value to territoriality in situations where nationals of a third State are among the victims of the attack on the aggressed State. The applicability of the passive personality principle to the crime of aggression, however, can be challenged by a fortiori reasoning. The discussion of the nationality principle, the principle of territoriality, the protective principle and the passive personality principle allows the conclusion that States have a right to exercise prescriptive jurisdiction to cover future situations where they aggress or are the directly aggressed State. An extension to situations in which they are allied States of the aggressed State is conceivable. The most controversial question is whether States have a right to establish universal jurisdiction. This covers future situations where none of the other principles establish a link to the State. According to this author, a permissive rule to exercise universal jurisdiction to prescribe regarding the crime of aggression can be assumed. This can be achieved either under an inductive approach by emphasizing the practice of the International Military Tribunal at Nuremberg, or with support of

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deductive reasoning based on the nature of aggression as a “crime under international law”. Even if States have a right to exercise prescriptive or adjudicative universal jurisdiction over the crime of aggression, a right cannot oblige them. Political reasons may militate against the legislative establishment of universal jurisdiction. The study of Langer and Eason525 indicates that domestic courts would rarely exercise universal jurisdiction over the crime of aggression. Aggressors are mostly no “low-cost defendants” who are the preferred “targets” of universal jurisdiction trials.526 Langer and Eason define “low-cost defendants” as “those defendants whose prosecutions do not impose substantial diplomatic and other costs to the political branches of the prosecuting state”.527 Only persons “in a position effectively to exercise control over or to direct the political or military action of a State”528 can commit a crime of aggression. Aggressors may use this leadership position to impose substantial diplomatic or economic costs on prosecuting States and make themselves “high-cost defendants”. In the words of Bass, universal jurisdiction means in practice “embroiling one’s diplomatic apparatus in an imbroglio, and, quite likely, a confrontation with one or more states…it means burdening one’s court system with what will probably be an incredibly complex and problematic case; and it almost certainly means a great deal of domestic turmoil and controversy.”529 Why would a State willingly expose itself by implementing legislation to situations where it has to decide whether to bear these costs unilaterally as an agent of the international community? The costs of exercising adjudicative universal jurisdiction over aggressors are not necessarily outweighed by the benefits. However, the legislative implementation of universal jurisdiction over the crime of aggression ensures that domestic courts are not precluded from prosecuting aggressors where diplomatic and other costs are less significant than the expected benefits. Putin’s ordered invasion of Ukraine in 2022 may be such a rare case. Latvia and Lithuania have initiated criminal investigations. They include the crime of aggression allegedly committed by persons from the Russian leadership. It is possible that the political and economic isolation of Russia reduces their potential to impose substantial costs on the Baltic States. Resolutions of the UN General Assembly,530 the UN Human Rights Council531 and the Council of Europe532 condemn the Russian invasion as an act of aggression and were adopted by majority vote. Additionally, Russia

525

Langer and Eason 2019. Ibid. 527 Ibid., p. 782. 528 See ICC Statute, Article 8bis(1). 529 Bass 2004, p. 78. 530 UN General Assembly 2022. 531 UN Human Rights Council 2022. 532 Council of Europe 2022. 526

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is subject to unprecedented economic sanctions.533 European States are seeking to become independent from Russian oil. If the international community cuts political and economic ties to Russia, Russia can no longer exert influence on prosecuting States. Russian leaders are also the type of defendants that the international community has most clearly agreed should be prosecuted and punished. It is, for example, discussed whether the international community should establish a special criminal tribunal to adjudicate those who have allegedly committed the crime of aggression against Ukraine. If Langer’s hypothesis holds true,534 the Russian limited ability to impose political and economic costs, as well as the international agreement on the need for accountability, could have been an incentive for the Baltic States. Criminal investigations and prosecutions against Russian aggressors are expected to come with benefits. According to Langer, the benefits depend upon the domestic level of interest favoring the prosecution and trial of certain defendants.535 The seriousness of the ruthless Russian invasion, the strength of publicly available evidence, the emotional coverage of the conflict in the media, the historical and cultural links to Ukraine, as well as the presence of many refugees in Latvia and Lithuania, explain support for investigations. For such rare, but possible, situations where the domestic prosecution of aggressors is a politically available option, it is important to confirm that States have a right to establish universal jurisdiction over the crime of aggression. The Russian invasion of Ukraine is an exceptionally uncontroversial case of aggression. However, other instances of unlawful use of force could be brought to domestic courts without clearly amounting to a crime of aggression and without benefitting from broad international condemnation. The judicial branch of a State would have to decide whether to unilaterally bear the costs of a complex and politically challenging case if these cases were not a priori excluded from the domestic provision on universal jurisdiction. An anticipating legislature may have an interest in creating laws in accordance with international law to avoid State responsibility and corrective interpretation by domestic courts. Within the scope of what is legally possible under international law, a realistic anticipating legislature may prefer to create laws that reflect the ambitions of their courts to exercise jurisdiction to avoid the impression of overly symbolic legislation. Even if universal jurisdiction over the crime of aggression is legally possible, some States may prefer to exclude this option at the legislative level for political reasons. Legal challenges to the jurisdiction to adjudicate the crime of aggression may further affect the preceding legislative decision on how to specify the geographical ambit of criminal law. The following chapter will address the legal challenges that 533

For the sanctions against Russia imposed by the European Union, see https:// www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukr aine/sanctions-against-russia-explained/. Accessed 15 September 2022. 534 Langer 2011, p. 2, who states that universal jurisdiction concentrates on low-cost defendants and especially those about whose prosecution the international community reached broad agreement. 535 Langer 2011, p. 6.

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are raised against the exercise of adjudicative jurisdiction by States other than the aggressor State.

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Meron T (2003) International Law in the Age of Human Rights. Recueil des Cours 301: 9–489 Meyer J (1990) The Vicarious Administration of Justice: An Overlooked Basis of Jurisdiction. Harvard International Law Journal 31: 108–116 Mills A (2014) Rethinking Jurisdiction in International Law. British Yearbook of International Law 84: 187–239 Mills Z (2009) Does the World Need Knights Errant to Combat Enemies of All Mankind? Universal Jurisdiction, Connecting Links, and Civil Liability. Washington and Lee Law Review 66: 1315– 1367 Morris M (2001) High Crimes and Misconceptions: The ICC and Non-Party States. Law and Contemporary Problems 64: 13–66 Nsereko D D N (1999) The International Criminal Court: Jurisdictional and Related Issues. Criminal Law Forum 10: 87–120 O’Keefe R (2004) Universal Jurisdiction: Clarifying the Basic Concept. Journal of International Criminal Justice 2: 735–760 O’Keefe R (2015) International Criminal Law. Oxford University Press, Oxford Oehler D (1993) Internationales Strafrecht: Geltungsbereich des Strafrechts, internationales Rechtshilferecht, Recht der Gemeinschaften, Völkerstrafrecht [International Criminal Law], 2nd edn. Heymann, Cologne Oeter S (2013) Das Verbrechen der Aggression, die Konferenz von Kampala und das deutsche Strafrecht [The Crime of Aggression]. In: Jeßberger F, Geneuss J (eds) Zehn Jahre Völkerstrafgesetzbuch: Bilanz und Perspektiven eines “deutschen Völkerstrafrechts”. Nomos, Baden-Baden, pp 101–122 Open Society Justice Initiative (2022) Model Indictment for the Crime of Aggression Committed against Ukraine. https://www.justiceinitiative.org/publications/model-indictment-for-the-crimeof-aggression-committed-against-ukraine. Accessed 15 September 2022. Oppenheim L, Lauterpacht H (1955 (1974)) International Law: Peace, 8th edn. Longman, New York Paddeu F (2015) Countermeasures. In: Wolfrum R (ed) Max Planck Encyclopedias of Public International Law (online edn) Pappas C (1996) Stellvertretende Strafrechtspflege: Zugleich ein Beitrag zur Ausdehnung deutscher Strafgewalt nach Paragraph 7 Abs. 2 Nr. 2 StGB [Principle of Representation]. Ed. Iuscrim, Freiburg im Breisgau Parmas A (2017) Estonia. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 895–922 Popp A (2020) § 323 a. In: Laufhütte H W, Rissing-van Saan R, Tiedemann K (eds) Strafgesetzbuch: Leipziger Kommentar; Großkommentar, 12th edn. De Gruyter, Berlin Randall K C (1988) Universal Jurisdiction Under International Law. Texas Law Review 66: 785–841 Randelzhofer A, Dörr O (2012) Article 2 (4). In: Simma B, Mosler H, Paulus A, Chaitidou E (eds) The Charter of the United Nations: A Commentary, 3rd edn. Oxford University Press, Oxford REDRESS, Fédération Internationale pour les Droits Humains (2010) Extraterritorial Jurisdiction in the European Union: A Study of the Laws and Practice in the 27 Member States of the European Union (December 2010) Reisinger Coracini A (2009) Evaluating Domestic Legislation on the Customary Crime of Aggression under the Rome Statute’s Complementarity Regime. In: Stahn C, Sluiter G (eds) The Emerging Practice of the International Criminal Court. Martinus Nijhoff Publishers, Leiden/Boston, pp 725–754 Reisinger Coracini A (2010a) National Legislation on Individual Responsibility for Conduct Amounting to Aggression. In: Bellelli R (ed) International Criminal Justice: Law and Practice from the Rome Statute to its Review. Ashgate Pub, Farnham, Surrey, UK/Burlington, VT, pp 547–578 Reisinger Coracini A (2010b) The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression - at Last … in Reach … Over Some. Goettingen Journal of International Law 2: 745–789

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Reisinger Coracini A (2017) (Extended) Synopsis: The Crime of Aggression under Domestic Criminal Law. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1038–1078 Reisinger Coracini A, Wrange P (2017) The Specificity of the Crime of Aggression. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 307–350 Reydams L (2003) Universal Jurisdiction: International and Municipal Legal Perspectives. Oxford University Press, Oxford/New York Roberts A E (2001) Traditional and Modern Approaches to Customary International Law: A Reconciliation. American Journal of International Law 95: 757–791 Robinson D (2002) The Rome Statute and its Impact on National Law. In: Cassese A, Gaeta P, Jones, John R. W. D (eds) The Rome Statute of the International Criminal Court: A Commentary. Oxford University Press, Oxford/New York, pp 1849–1870 Ruys T (2017) Justiciability, Complementarity and Immunity: Reflections on the Crime of Aggression. Utrecht Law Review 13: 18–33 Ryngaert C (2015) Jurisdiction in International Law, 2nd edn. Oxford University Press, Oxford Sadat L N (2007) Extraordinary Rendition, Torture, and Other Nightmares from the War on Terror Symposium on the New Face of Armed Conflict: Enemy Combatants after Hamdan v. Rumsfeld. George Washington Law Review 75: 1200–1248 Safferling C, Kirsch S (2012) Zehn Jahre Völkerstrafgesetzbuch [Ten Years German Code of Crimes Against International Law]. Juristische Arbeitsblätter 481–487 Satzger H (2012) International and European Criminal Law. Beck, Munich Satzger H (2015) Internationales und Europäisches Strafrecht [International and European Criminal Law], 7th edn. Nomos, Baden-Baden Sayapin S (2018) A Curious Aggression Trial in Ukraine: Some Reflections on the Alexandrov and Yerofeyev Case. Journal of International Criminal Justice 16: 1093–1104 Sayapin S (2020) The Yanukovych Trial in Ukraine: A Revival of the Crime of Aggression? Israel Yearbook on Human Rights 50: 63–79 Schabas W (2016) The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. Oxford University Press, Oxford Schachter O (1989) Recent Trends in International Law Making. Australian Year Book of International Law 12: 1–15 Scharf M P (2007) Jurisdiction with Respect to Crime: Universal Jurisdiction and the Harvard Research. In: Grant J P, Barker J C (eds) The Harvard Research in International Law: Contemporary Analysis and Appraisal. William S. Hein, Buffalo, NY, pp 275–306 Scharf M P (2010) Seizing the “Grotian Moment”: Accelerated Formation of Customary International Law in Times of Fundamental Change. Cornell International Law Journal 43: 439–469 Scharf M P (2012) Universal Jurisdiction and the Crime of Aggression. Harvard International Law Journal 53: 357–389 Scharf M P (2013) Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments. Cambridge University Press, Cambridge Scharf M P (2019) Striking a Grotian Moment: How the Syria Airstrikes Changed International Law Relating to Humanitarian Intervention. Chicago Journal of International Law 19: 586–614 Scheffer D J (2002) The Future of Atrocity Law. Suffolk Transnational Law Review 25: 389–432 Schwarzenberger G (1950) The Problem of an International Criminal Law. Current Legal Problems 3: 263–296 Schwelb E (1946) Crimes Against Humanity. British Year Book of International Law 23: 178–226 Seibert-Fohr A (2006) Unity and Diversity in the Formation and Relevance of Customary International Law: Modern Concepts of Customary International law as a Manifestation of a ValueBased International Order. In: Zimmermann A, Hofmann R, Goeters H (eds) Unity and Diversity in International Law: Proceedings of an International Symposium of the Kiel Walther Schücking Institute of International Law, November 4–7, 2004. Duncker & Humblot, Berlin, pp 257–283

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UN Secretary General (1949) Memorandum on “The Charter and Judgment of the Nuremberg Tribunal, History and Analysis”. UN Doc. A/CN.4/5 Vagias M (2014) The Territorial Jurisdiction of the International Criminal Court. Cambridge University Press, New York van Schaack B (2012) Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression. Journal of International Criminal Justice 10: 133–164 van Steenberghe R (2011) The Obligation to Extradite or Prosecute: Clarifying its Nature. Journal of International Criminal Justice 9: 1089–1116 Vasiliev S (2022) Aggression Against Ukraine: Avenues for Accountability for Core Crimes, 3 March 2022: https://www.ejiltalk.org/aggression-against-ukraine-avenues-for-accountabilityfor-core-crimes/. Accessed 15 September 2022 Villalpando S (2010) The Legal Dimension of the International Community: How Community Interests Are Protected in International Law. European Journal of International Law 21: 387–419 Von Knieriem A (1959) Nuremberg Trials. Henry Regnery Company, Chicago Vöneky S (2008) Analogy in International Law. In: Wolfrum R (ed) Max Planck Encyclopedias of Public International Law (online edn) Watson G R (1993) The Passive Personality Principle. Texas International Law Journal 28: 1–46 Weatherall T (2015) Jus Cogens: International Law and Social Contract. Cambridge University Press, Cambridge Weigend T (2005) Grund und Grenzen universaler Gerichtsbarkeit [Basis and Limits of Universal Jurisdiction]. In: Arnold J, Burkhardt B, Gropp W, Heine G, Koch H-G, Lagodny O, Perron W, Walther S (eds) Menschengerechtes Strafrecht: Festschrift für Albin Eser zum 70. Geburtstag. Beck, Munich, pp 955–976 Weiß W (2002) Völkerstrafrecht zwischen Weltprinzip und Immunität [International Criminal Law Between Universal Jurisdiction and Immunity]. Juristenzeitung 696–704 Werle G, Jeßberger F (2020a) § 6. In: Rissing-van Saan R, Radtke H, Rönnau T, Schluckebier W, Cirener G (eds) Strafgesetzbuch: Leipziger Kommentar: Großkommentar, 13th edn. De Gruyter, Berlin Werle G, Jeßberger F (2020b) Principles of International Criminal Law, 4th edn. Oxford University Press, Oxford Werle G, Jeßberger F (2020c) Vor §§ 3 ff. In: Rissing-van Saan R, Radtke H, Rönnau T, Schluckebier W, Cirener G (eds) Strafgesetzbuch: Leipziger Kommentar: Großkommentar, 13th edn. De Gruyter, Berlin Wildhaber L, Breitenmoser S (1988) The Relationship between Customary International Law and Municipal Law in Western European Countries. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 163–207 Woetzel R K (1960) Nuremberg Trials in International Law. Frederick Praeger, London Wolswijk H D (1999) Locus Delicti and Criminal Jurisdiction. Netherlands International Law Review 361–382 Worster W T (2014) The Inductive and Deductive Methods in Customary International Law Analysis: Traditional and Modern Approaches. Georgetown Journal of International Law 45: 445–521 Wrange P (2017) The Crime of Aggression, Domestic Prosecutions and Complementarity. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 704–751 Wright Q (1947) The Law of the Nuremberg Trial. American Journal of International Law 41: 38–72 Wright R (1948) Introductory Chapter. In: The United Nations War Crimes Commission (ed) History of the United Nations War Crimes Commission and the Development of the Laws of War, pp 1–23. H.M. Stationery Office, London, pp 1–23 Zhou L (2017) China. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 1131–1142

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Ziegenhain H-J (1992) Extraterritoriale Rechtsanwendung und die Bedeutung des Genuine-LinkErfordernisses: Eine Darstellung der deutschen und amerikanischen Staatenpraxis [Extraterritorial Jurisdiction and the Importance of the Requirement of a “Genuine Link”. Beck, Munich

Other Documents (1947) The Trial of German Major War Criminals before the International Military Tribunal Allied Control Council No. 10 (1949) Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Volume XI/2 Azerbaijan (2010) Scope and Application of Universal Jurisdiction in Azerbaijan: Report Submitted to the Sixth Committee of the UN General Assembly Belarus (2019) Scope and Application of Universal Jurisdiction in Bulgaria: Report Submitted to the Sixth Committee of the UN General Assembly Commonwealth Secretariat (2017) Model Law - Rome Statute of the International Criminal Court Deutscher Bundestag (2016) Gesetzesentwurf der Bundesregierung: Entwurf eines Gesetzes zur Änderung des Völkerstrafgesetzbuches [Draft Law of the Federal Government to Amend the German Code of Crimes Against International Law]. Bundestags-Drucksache 18/8621 European Union (2022) Informal Meeting of Heads of State or Government, Versailles Declaration, 10 and 11 March 2022 Georgia (2016) Scope and Application of Universal Jurisdiction in Georgia: Report Submitted to the Sixth Committee of the UN General Assembly Portugal (2020) Scope and Application of Universal Jurisdiction in Slovenia: Report Submitted to the Sixth Committee of the UN General Assembly Review Conference of the Rome Statute (2010) Resolution RC/Res.6 of 11 June 2010 Slovenia (2020) Scope and Application of Universal Jurisdiction in Slovenia: Report Submitted to the Sixth Committee of the UN General Assembly

Chapter 8

Legal Challenges for Foreign Adjudicative Jurisdiction

Contents 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.1 Legal Challenges as a Response to the Unique Character of the Crime of Aggression? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.2 Sovereignty as the Origin of Most Legal Challenges . . . . . . . . . . . . . . . . . . . . . . . 8.1.3 Presumption of Congruency Between Prescriptive and Adjudicative Jurisdiction Unless Prohibitive Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 The Principle of Par in Parem non Habet Imperium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 The Claim in Article 8 of the 1996 Draft Code of Crimes of the International Law Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 A Principle with a Different Original and an Uncertain Current Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 No General Practice Accepted as Law in Support of the Claimed Restriction to the Aggressor State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 Conclusion to the Principle of Par in Parem non Habet Imperium . . . . . . . . . . . . 8.3 Personal Immunity from Foreign Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Rationale: Smooth Conduct of International Relations . . . . . . . . . . . . . . . . . . . . . 8.3.2 Limited Personal, Limited Temporal and Absolute Material Scope . . . . . . . . . . . 8.3.3 Applicability Even If Commission of Crime of Aggression . . . . . . . . . . . . . . . . . 8.3.4 Conclusion to Personal Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Functional Immunity from Foreign Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.1 Rationale: Consequence of State Immunity or Something Else? . . . . . . . . . . . . . 8.4.2 Limited Material, Broad Personal and Broad Temporal Scope . . . . . . . . . . . . . . . 8.4.3 Methodological Framework for Determining the (In-)Applicability to the Crime of Aggression Under Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . 8.4.4 Legal Nature of Functional Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.5 Inductive Approach: Aggression-Specific State Practice . . . . . . . . . . . . . . . . . . . . 8.4.6 Deductive Approach: Principle-Based Reasoning . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 The Monetary Gold Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.1 The Origin of the Doctrine: Contentious Proceedings of the International Court of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.2 Extension of the Doctrine to All International Tribunals? . . . . . . . . . . . . . . . . . . . 8.5.3 Extension to Domestic Aggression Proceedings? . . . . . . . . . . . . . . . . . . . . . . . . . . 8.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Although this book primarily deals with prescriptive jurisdiction as exercised by the legislature, it would be incomplete without addressing legal challenges that arise when domestic courts apply the enacted laws. This chapter focuses on challenges for States other than the aggressor State. It explores the situation where a State has lawfully exercised prescriptive jurisdiction according to the previous chapters, but where international law prohibits domestic courts from exercising adjudicative jurisdiction over a specific person and case. The discussion is limited to the principle of par in parem non habet imperium, personal and functional immunities as well as the Monetary Gold doctrine. These challenges seem to respond to the “unique character” of the crime of aggression whose definition typically results in high-profile cases involving persons in powerful positions and the assessment of an act of State. This book does not question the barring effect of personal immunities of certain State officials while in office. The relevance of domestic implementations would be dramatically reduced, however, if functional immunities were applicable and barred proceedings even after State officials have left office. Unlike the International Law Commission, the chapter argues that functional immunities are inapplicable under customary international law with respect to the crime of aggression. This claim is based on inductive and deductive reasoning. It also explains why there is neither an absolute nor an attenuated prohibitive rule for foreign adjudicative jurisdiction flowing from the ambiguous principle of par in parem non habet imperium, or the international dispute settlement rule of Monetary Gold. Keywords Unique character of the crime of aggression · Sovereignty · Presumption of congruency between prescriptive and adjudicative jurisdiction · Prohibitive rule · Principle of par in parem non habet imperium · Personal immunity · Functional immunity · Irrelevance of official position and inapplicability of functional immunity · Inductive Approach · General language of the Nuremberg claim · Deductive approach · Ius cogens · Crimes under international law · Blaškic judgment · Extraterritorial jurisdiction · Monetary Gold doctrine

8.1 Introduction This chapter assesses the legal challenges that may exist under international law for the adjudicative jurisdiction of States other than the aggressor State. It does not deny the possible practical challenges that arise when prosecuting foreign State leaders for the crime of aggression.1 However, the focus of the chapter is on legal challenges as described in the following situation: A State has lawfully exercised prescriptive jurisdiction, by incorporating the crime of aggression into domestic law2 and by

1 2

For difficulties and risks, such as the surrender of suspects, see Grzebyk 2015, Part III. See Chap. 6.

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determining its geographical reach.3 The domestic courts, however, are not allowed under international law to exercise adjudicative jurisdiction over a person who has allegedly committed a crime of aggression. The focus of this chapter on foreign adjudicative jurisdiction, meaning the jurisdiction of victim States and third States, is warranted due to legal concerns raised in several international documents.4 In the 1996 Draft Code of Crimes against the Peace and Security of Mankind and the respective Commentary,5 for example, the International Law Commission questioned the domestic jurisdiction of victim States and third States. It claimed that “the determination by a national court of one State of the question of whether another State had committed aggression would be contrary to the fundamental principle of international law par in parem imperium non habet.”6 States Parties to the International Criminal Court did not dispel doubts in 2010 when they adopted a “constructively ambiguous”7 understanding to the Kampala Amendments. It states that “the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.”8 The International Law Commission increased doubts in 2017. It did not include the crime of aggression as the “supreme international crime” in a draft article on the inapplicability of functional immunities. This article provides that “[i]mmunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.”9 Irrespective of whether dynamics within the International Law Commission or at the Kampala Conference may have provoked this outcome, the adopted draft article and the understanding to the Kampala Amendments suggest legal controversies worth exploring. The legal challenges for adjudicative jurisdiction that are discussed in this chapter are the principle of par in parem non habet imperium, immunities, and the Monetary Gold doctrine.10 The chapter focuses on challenges under international law. It does not explore the act of State doctrine, or the political question doctrine, both stemming from domestic law and varying among States.11 The chapter will not deal with 3

On the basis of one of the applicable permissive rules discussed in Chap. 7, namely the principle of territoriality, the principle of nationality, the protective principle, arguably the principle of passive personality and universal jurisdiction. 4 The concerns rarely challenge the right under international law of the aggressor State to prosecute its nationals for the commission of the crime of aggression. 5 In the following “1996 Draft Code of Crimes”. 6 See Draft Article 8 in International Law Commission 1996, para 14. 7 On the practice of treaty negotiators in applying constructive ambiguity, see Hafner 2013, pp. 107 et seq. 8 Emphasis added by the author. See Review Conference of the Rome Statute 2010, Annex III. 9 See Draft Article 7(1) in International Law Commission 2017b, pp. 176 et seq. 10 For a discussion of the various legal challenges, see Strapatsas 2010; Wrange 2017. For a more general discussion of restraints on the exercise of domestic jurisdiction, see Evans 2018, pp. 316 et seq. 11 For an analysis, see Wrange 2017, pp. 724 et seq.

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immunities under domestic, mostly constitutional law.12 Constitutional immunities can bar criminal proceedings of the aggressor State against its head of State, members of parliament and members of government. In contrast, they are technically unable to bar proceedings in courts of victim States and third States.13 Domestic courts are not obliged to respect foreign constitutional law. Domestic courts are obliged, however, to respect international law which may give rise to legal challenges. These challenges seem to respond to the allegedly unique character of the crime of aggression (Sect. 8.1.1) and originate from the principle of State sovereignty (Sect. 8.1.2). Conceptually, they will be assessed as possible prohibitive rules that rebut the presumed congruency between prescriptive and adjudicative jurisdiction (Sect. 8.1.3).

8.1.1 Legal Challenges as a Response to the Unique Character of the Crime of Aggression? The “unique character”14 of the crime of aggression, which is the potential source of legal challenges, is reflected in the definition of Article 8bis of the ICC Statute.15 The crime of aggression is the only crime under international law which explicitly contains a State act in its definition.16 The underlying acts of genocide, crimes against humanity and war crimes, in contrast, are described as individual acts (e.g. murder, torture and rape). It is their commission on behalf of a State which turns them into State acts.17 Due to the underlying State act of aggression, the crime of aggression does not require such a “translation process”. However, the “State act of aggression” is after all a prior legal abstraction. The State, as a legal entity, cannot act. It needs human arms to use force of such a character, gravity and scale to manifestly violate the UN Charter.18 The individual acts are only omitted in this definition of the crime. It would have been possible, however, to define the crime of aggression in a way that does not separate out the State act of aggression and the individual involvement of 12

For a comparative study on immunities under domestic constitutional law, see Jackiewicz and Olechno 2018; Kreicker 2006, pp. 293 et seq. See also the examples given by Gaeta 2002, pp. 977 et seq. 13 In the same vein, Fox and Webb 2015, p. 547. 14 For a critical discussion of unique features of the crime of aggression, see Reisinger Coracini and Wrange 2017. 15 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (ICC Statute). 16 See ICC Statute, Article 8bis(2): “‘act of aggression’ means the use of armed force by a State…” See also the critical discussion by Reisinger Coracini and Wrange 2017, p. 316. 17 Genocide, crimes against humanity and war crimes still contain an element of “system criminality”, meaning the involvement of a collectivity which is often the State. See Nollkaemper 2009, pp. 12 et seq. See also Reisinger Coracini and Wrange 2017, pp. 314 et seq. 18 Charter of the United Nations, opened for signature 26 June 1945, 33 UNTS 933 (entered into force 24 October 1945) (UN Charter).

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a person. It would have been possible to “merge the two steps into one, so that the determination of a State act of aggression would be implicit, rather than explicit”.19 Article 8bis of the ICC Statute and corresponding domestic implementations, in contrast, require courts to explicitly assess a State act of aggression. Apart from the definitional reduction to a State act, the leadership clause is another unique feature of the crime.20 According to Article 8bis(1) of the ICC Statute, the crime of aggression can only be committed by a “person in a position effectively to exercise control over or to direct the political or military action of a State”.21 This cannot be found in the definitions of genocide, crimes against humanity and war crimes under the ICC Statute. Focusing on “those who bear the greatest responsibility” may nonetheless be part of the prosecutorial strategy of international criminal tribunals and courts.22 This constitutes a pragmatic approach to address system criminality which involves a multitude of persons that surpasses the capacities of courts. The focus on “those who bear the greatest responsibility” corresponds to the informal “division of labor” between domestic and international criminal courts. It leaves the less responsible, but numerous “small fry” to domestic courts.23 This division of labor, however, cannot be pursued for the crime of aggression due to the limitation in the definition to persons with a position of effective control or direction. Domestic courts would also need to exercise jurisdiction over those “most responsible”. The unique limitation in the definition to high-profile cases, involving persons in powerful positions and dealing with the manifestly unlawful act of State, could explain the challenges faced by the adjudicative jurisdiction of victim States and third States. The International Law Commission, for example, questioned the domestic jurisdiction of States, other than the aggressor State in the Commentary to the mentioned 1996 Draft Code of Crimes due to the “unique character” of the crime.24 Similarly, the “particular characteristics”25 of the crime of aggression, its “political nature”26 and character as a “crime of leaders”27 were raised in discussions within the International Law Commission in 2017 about the crimes to which functional immunity does not apply.

19

Ruys 2017, p. 24. For a critical discussion, see Reisinger Coracini and Wrange 2017, pp. 209 et seq. 21 See ICC Statute, Article 8bis(1). 22 See, e.g., Office of the Prosecutor 2016, paras 42 et seq.; Jalloh 2020, p. 114. 23 Jalloh 2020, p. 113. 24 See Commentary to Draft Article 8 in International Law Commission 1996, para 14. 25 See statement by the Peruvian member Ruda Santolaria in International Law Commission 2017e, p. 14. 26 See International Law Commission 2017a, p. 6. 27 See statement by Special Rapporteur Escobar in International Law Commission, p. 14. 20

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8.1.2 Sovereignty as the Origin of Most Legal Challenges The legal challenges to foreign adjudicative jurisdiction originate from the principle of sovereign equality or sovereignty more generally.28 As the common combination of “sovereign” and “equality” suggests, equality is closely connected to the sovereignty of States, their supreme power (suprema potestas). Sovereignty negates the existence of any supreme power and requires States to be on an equal footing.29 The International Law Commission explained the omission of the crime of aggression in the list of crimes to which functional immunity does not apply as follows: The “prosecution of State officials for the crime of aggression by other States would affect the sovereign equality of States”.30 The principle of par in parem non habet imperium literally means that an equal does not have authority over an equal. This principle is “simply a seemingly more venerable way”31 of arguing for the sovereign equality of States.32 The consent requirement under the Monetary Gold doctrine can also be traced back to the principle of sovereignty, which precludes the assumption of a superior power without consent.33 Sovereignty, or rather sovereign equality, was the backbone of the legal framework relevant for the exercise of prescriptive jurisdiction as presented in Chap. 7. It was argued that the exercise of prescriptive jurisdiction by a State does not violate the sovereignty of other States to regulate what happens on their territory, provided there is a permissive rule under international law.34 Hence, the framework developed based on sovereign equality for the exercise of prescriptive jurisdiction could be upset regarding adjudicative jurisdiction by rules stemming from the same fundamental principle.

8.1.3 Presumption of Congruency Between Prescriptive and Adjudicative Jurisdiction Unless Prohibitive Rule The chapter’s assessment of the legal challenges is premised on the presumption of congruency between prescriptive and adjudicative jurisdiction in the absence of a prohibitive rule under customary international law.

28

On these notions, see Crawford 2019, pp. 431 et seq. Dinstein 1966, p. 414; Epping and Heintschel von Heinegg 2018, §7 mn. 254; Kelsen, pp. 207 et seq.; Kohen 2005, p. 400. 30 See International Law Commission 2017b, p. 172. 31 Yang 2012, p. 55. 32 Epping and Heintschel von Heinegg 2018, §7 mn. 254; Kelsen, p. 209; Kohen 2005, p. 400; Mégret 2015, p. 209. See also ICC (AC), Al Bashir (Jordan), Judgment, 6 May 2019, summary, para 29. 33 Thienel 2016, pp. 54 et seq. 34 See Chap. 7, Sect. 7.1.2. 29

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As explained in Chap. 7, “jurisdiction to prescribe” refers to the authority to lay down the requirements and the consequences of a criminal offense, as well as the geographical ambit of criminal law in an abstract and general manner.35 “Jurisdiction to adjudicate” is understood as the authority to entertain legal proceedings in respect of a given matter.36 As domestic courts normally do not apply foreign criminal law,37 prescriptive and adjudicative jurisdiction are, in principle, congruent.38 A State which has exercised jurisdiction to prescribe over the crime of aggression based on an established permissive rule39 is presumed to have the congruent authority to entertain legal proceedings. This presumption, however, can be rebutted by a prohibitive rule under international law. This refined system of allocating the burden of proof consists of: First, the demanding requirement for implementers to establish a permissive rule to exercise jurisdiction to prescribe, secondly, the alleviation of the burden of proof for domestic courts due to the presumption of congruency between prescriptive and adjudicative jurisdiction and thirdly, the ability of other States to rebut this presumption by a contrary prohibitive rule. These steps can be found in discussions of universal jurisdiction in absentia and immunities.40 Kreß states with respect to universal jurisdiction in absentia: “[T]o the extent that a title to prescriptive universal criminal jurisdiction exists under customary international law, a State that has exercised this title must be presumed to have the jurisdiction title to adjudicate the matter by way of investigation and, where applicable, prosecution and trial, unless this title is restricted by an applicable international rule stating the contrary.”41 Similarly, Geneuss discusses immunities and the requirement that the defendant be present as “rules stating the contrary”. They can rebut the presumed congruency between jurisdiction to prescribe and jurisdiction to adjudicate.42 Inspired by the considerations of Kreß and Geneuss, this chapter assesses whether the legal challenges amount to prohibitive rules under customary international law which apply to the principles of jurisdiction discussed in Chap. 7. The analysis

35

See Chap. 7, Sect. 7.1.1. See Jeßberger 2011, pp. 9 et seq. See also Geneuss 2013, pp. 33 et seq.; O’Keefe 2015b, para 1.7. 36 See Jeßberger 2011, pp. 10 et seq.; Mills 2014, p. 195; O’Keefe 2004, p. 737; O’Keefe 2015b, para 1.8; §401(b) American Law Institute 1987. 37 This is different under private law. See Akehurst 1972–1973, p. 179. For a rare exception, see Satzger 2012, §3 mn. 5 who refers to former Article 5 of the Swiss Penal Law. 38 Jeßberger 2011, pp. 9 et seq. For the presumption of congruency, see also Bungenberg 2001, p. 183; Gärditz 2006, pp. 28 et seq.; Geneuss 2013, p. 36; Kreß 2002, pp. 830 et seq.; O’Keefe 2004, p. 737; Kreß 2006, p. 564. 39 See Chap. 7. 40 See, in general, Kreß 2006, p. 565; Kreß 2002, pp. 830 et seq. See also Geneuss 2013, pp. 37 et seq., 128 et seq.; Werle and Jeßberger 2020, para 267. 41 Kreß 2006, p. 565. 42 Geneuss 2013, p. 128.

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follows the classical inductive approach, which requires general practice and opinio iuris.43 Deductive reasoning will be used “as an aid”.44

8.2 The Principle of Par in Parem non Habet Imperium A rule prohibiting the adjudicative jurisdiction of States, other than the aggressor State, may stem from the allegedly “fundamental principle of international law par in parem non habet imperium”.45 It means that an equal does not have authority over an equal. This was famously claimed by the International Law Commission in the 1996 Draft Code of Crimes against the Peace and Security of Mankind.46 It was also raised as a legal concern in Croatia when implementing the Kampala Amendments. Croatian scholars “questioned the overall ability of national courts to prosecute and punish perpetrators of the crime of aggression relying on the par in parem imperium non habet maxim”.47 More recently, it sporadically appeared in the discussion of how to react to the Russian invasion of Ukraine.48

8.2.1 The Claim in Article 8 of the 1996 Draft Code of Crimes of the International Law Commission In the 1996 Draft Code of Crimes, the International Law Commission adopted Draft Article 8, which provides the jurisdiction over the crime of aggression “shall rest with an international criminal court” while a State “is not precluded from trying its nationals” for the crime of aggression.49 It claims the exclusive jurisdiction of an international criminal court with the singular exception of the jurisdiction of the alleged aggressor State. The International Law Commission explained this claim in reference to the “unique character of the crime of aggression”.50 This character leads to a violation of the principle of par in parem non habet imperium whenever a State other than the aggressor State exercises jurisdiction.51 The crime of aggression is

43

See ICJ Statute, Article 38(1)(b): “general practice accepted as law”; Draft Conclusion 2 in International Law Commission 2018a. See, in detail, Chap. 7, Sect. 7.7.3.1. 44 See Commentary to Draft Conclusion 2 in International Law Commission 2018a, para 5. 45 See Commentary to Article 8 in International Law Commission 1996, paras 14 et seq. 46 See ibid., para 15. 47 Cited by Turkovi´ c and Munivrana Vajda 2017, p. 877. 48 See, e.g., Schaller 2022. 49 See Draft Article 8 in International Law Commission 1996. 50 See Commentary to Article 8 in International Law Commission 1996, para 14. 51 Ibid. As explained in Chap. 7, Sect. 7.2.3 the suggested restriction to the aggressor State seems to affect the jurisdiction to adjudicate and not necessarily the jurisdiction to prescribe.

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unique because it requires, by definition, the establishment of a State act of aggression.52 This is why the International Law Commission contends that States other than the aggressor State would assume authority (imperium) over an equal State whenever their criminal courts consider, as a preliminary matter, the question of aggression by a State. The 1996 Draft Code of Crimes, however, has never been transformed into a binding instrument.53 As the expression of the legal view of 34 “persons of recognized competence in international law”54 at that time, it is only a subsidiary means for the determination of international law.55 It does not replace the verification whether the alleged restriction to aggressor State jurisdiction exists under customary international law.

8.2.2 A Principle with a Different Original and an Uncertain Current Understanding The crux of the principle of par in parem non habet imperium is that there is an uncertainty about the specific rules that flow from it. The International Law Commission’s deduction of a prohibitive rule applicable to the adjudicative jurisdiction of other States conflicts with its original understanding in canon law. Deducing an absolute and separate prohibitive rule to foreign criminal jurisdiction also conflicts with the principle’s current use in the law on immunities and other voices in literature. Finally, this deduction is difficult due to the multifaceted nature of the underlying principle of sovereign equality. The initial understanding of the principle has nothing to do with the one proclaimed by the International Law Commission.56 According to Dinstein, the principle of par in parem non habet imperium derives from canon law, namely from a ruling of Pope Innocent III in 1199.57 Other scholars perceive it as a principle stemming from the 14th century Italian jurist Bartolus.58 Interestingly, the canon law understanding of the principle did not refer to interstate relations. This is why a strict

52

See Commentary to Article 8 in International Law Commission 1996, para 14. Crawford 2017, p. 237. 54 Statute of the International Law Commission, Article 2(1). 55 See ICJ Statute, Article 38(1)(d). On the legal value of the 1996 Draft Code, see also ICTY (TC), Furundžija, Judgment, 10 December 1998, para 227. 56 For a similar critique on the divergence between the original and the current meaning, see Yang 2012, p. 52. 57 Dinstein 1966, p. 408; de Louter 1920, p. 9 (“l’ancienne règle de droit canonique”); Yang 2012, p. 52. 58 See Badr 1984, p. 89; Crawford 2019, p. 447 fn. 9; Delbrück et al. 1989, p. 453. Bartolus, however, used this principle in the context of lawful reprisal, which is why the principle seems ill-fitting in the context of criminal justice. On Bartolus’ use of the principle, see Woolf 1913, pp. 205 et seq. 53

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reference to the principle is less convincing. It used to be applied in the temporal relationship of successive popes, whereby one pope cannot bind the succeeding one.59 It later transcended to the secular environment and turned toward the horizontal relationship between equal princes that cannot settle a dispute without a monarch as a supreme judge.60 Under modern international law, the principle of par in parem non habet imperium is the starting point for the field of immunities.61 A systematic reading of the 1996 Draft Code of Crimes, however, suggests that the International Law Commission used the principle for a purpose other than immunities. Article 7 of the 1996 Draft Code of Crimes specifically deals with immunities.62 It renders immunities inapplicable without making any distinction between the crimes enshrined in the Draft Code of Crimes, or between national and international courts.63 The additional adoption of Article 8, which restricts jurisdiction to an international court and the national State of the aggressor, suggests that the principle of par in parem non habet imperium is claimed to give rise to a rule other than immunities. The disagreement on the rules that flow from the principle is illustrated by other positions in literature. Unlike the International Law Commission, Akande does not perceive the principle of par in parem non habet imperium as an absolute principle but accepts exceptions, such as the exercise of jurisdiction by the victim State as a form of self-help.64 Its character as a principle, instead of a rule, could explain why there is uncertainty about the specific content of the rules that flow from it.65 A limitation to the jurisdiction of the aggressor State does not naturally flow from the principle of par in parem non habet imperium, which is another way of arguing with the multifaceted principle of the sovereign equality of States.66 Unlike the Latin phrase,67 the sovereign equality of States is certainly a “fundamental principle of international

59

Dinstein 1966, p. 408; Jurdi 2013, p. 131; Yang 2012, p. 52. Dinstein 1966, p. 409; Moore 1916, p. 345; Yang 2012, p. 52. 61 Dinstein 1966, p. 407; Yang 2012, pp. 51 et seq. See also Badr 1984, p. 89; Crawford 2019, p. 433. 62 See Draft Article 7 in International Law Commission 1996. 63 See Commentary to Draft Article 7 in International Law Commission 1996, para 6: “Article 7 is intended to prevent an individual who has committed a crime against the peace and security of mankind from invoking his official position as a circumstance absolving him from responsibility or conferring any immunity upon him”. 64 Akande 2010, p. 33. 65 As a principle, it cannot answer the question of “what”, but only the question of “why”. See Dinstein 1966, pp. 407 et seq.; Dinstein builds on the distinction between principle and rule established by Fitzmaurice 1957, p. 7. 66 Kelsen, p. 209; Kohen 2005, p. 400; Mégret 2015, p. 209; Yang 2012, p. 55 with further references. See also ICC (AC), Al Bashir (Jordan), Judgment, 6 May 2019, summary, para 29. 67 Dinstein asserts that it is an overstatement to consider the principle of par in parem imperium non habet as the most fundamental principle of international law, see Dinstein 1966, p. 407. But see for such assertions King 1948, p. 818; Veroff 2016, p. 745. 60

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law”.68 Sovereign equality is also the backbone of functional immunities and the reason why jurisdiction to prescribe requires a permissive rule.69 Sovereign equality is also likely reconcilable with a system that only requires a permissive rule for prescriptive jurisdiction and recognizes functional immunities. Hence, sovereign equality, disguised in the catchy phrase of par in parem non habet imperium, does not necessarily lead to an additional and absolute prohibitive rule for adjudicative jurisdiction of States other than the aggressor State. Such an absolute prohibitive rule would require general practice accepted as law.

8.2.3 No General Practice Accepted as Law in Support of the Claimed Restriction to the Aggressor State There is no general practice accepted as law, however, that would support an absolute and separate prohibitive rule, as claimed by the International Law Commission based on the principle of par in parem non habet imperium.70 To recall, the permissive rules under customary international law on the jurisdiction to prescribe, as established in the previous chapter,71 create the presumption of a congruent jurisdiction to adjudicate. In principle, all permissive rules, even the principle of nationality, allow the exercise of jurisdiction by courts of States other than the aggressor State.72 To rebut this presumption for cases where domestic criminal courts need to assess whether the conduct of another State amounts to an act of aggression, it would be necessary to provide sufficient State practice accepted as law in favor of a respective prohibitive rule. The existence of a prohibitive rule would suggest complete inaction of domestic courts, or respective affirmative practice that States other than aggressor States are not allowed to exercise jurisdiction.73 It is, however, easier to find State practice

68

See Fassbender 2012, para 73; Kokott 2011, para 1. See Chap. 7, Sect. 7.1.2. 70 See Reisinger Coracini 2009, p. 731; Kestenbaum 2016, p. 74; Sayapin 2014, pp. 242 et seq.; Strapatsas 2010, pp. 452 et seq.; Wrange 2017, p. 714. 71 The permissive rules are territoriality, nationality, the protective principle, arguably passive personality and depending on the weight given to Nuremberg and to deductive reasoning also universality. 72 A person can theoretically be “in a position effectively to exercise control over or to direct the political or military action of a State” and commit a crime of aggression without having the nationality of this State. 73 In case of prohibitive rules, it is difficult to find affirmative practice, as opposed to inaction, which is why “cases involving such rules are more likely to turn on evaluating whether the inaction is accepted as law”. See Commentary to Draft Conclusion 3 in International Law Commission 2018a, para 4; see also D’Aspremont 2021, p. 97 (“Since the great majority of rules of international law are of a prohibitive character, the establishment of customary international law very often requires a speculative venture into nothingness.”). 69

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which dismisses the claimed restriction of adjudicative jurisdiction to the aggressor State. There is judicial practice from States other than the aggressor State. States have prosecuted individuals for the crime of aggression and indirectly determined that another State had committed aggression “without placing too much weight (if any) on the par in parem imperium non habet maxim”.74 This practice primarily arose in the aftermath of World War II. Criminal trials were conducted against German and Japanese officials by Chinese,75 Soviet,76 Polish,77 and American78 courts.79 These were domestic courts of victim States80 or even States that were not officially designated by the Nuremberg or Tokyo Tribunals as a victim of aggression.81 Some question the reliability of these instances of State practice due to their origin from the “unsettled era immediately following World War II”.82 This neglects the fact that aggression trials can logically only occur after a State has been aggressed, which tends to lead to an unsettled era. More recent judicial practice from States other than the aggressor State stems from the Russia-Ukraine conflict.83 In 2016, a criminal trial was conducted in Ukraine against the former military servicemen Alexandrov and Yerofeyev of the Russian armed forces who were charged with aggression for their participation in hostilities in Eastern Ukraine.84 The Ukrainian court alluded to the responsibility of Russia elsewhere in the judgment.85 Ukraine did not perceive itself as being precluded from indirectly sitting in judgment over the conduct of another State. If the principle of par in parem non habet imperium is supposed to be something other than the source of functional immunities, dismissive practice may also stem from the criminal trial conducted in Ukraine against former Ukrainian President Yanukovych. He was tried in absentia for participating in a Russian act of aggression.86 Functional immunities could not arise in this trial due to the Ukrainian 74 For a discussion of these trials and their silence on the par in parem non habet imperium principle, see Strapatsas 2010, pp. 453 et seq.; van Schaack 2012, p. 140. 75 Such as the trials against Sakai, Isogai and Tani. 76 Such as the trials against the Wehrmacht Generals. 77 Such as the trial against Greiser. 78 Such as the follow-up trials with crime of aggression charges before the US Military Tribunals in the Krauch et al. case (the so-called I.G. Farben case), the Krupp et al. case, the von Weizäcker et al. case (the so-called Ministries case) and the von Leeb et al. case (the so-called High Command case). On the trials, see Heller 2011. 79 On these trials, see also Sect. 8.4.5.3 below. 80 Namely those conducted by China and Poland, see Strapatsas 2010, p. 454. 81 Namely those conducted under the Control Council Law No. 10 by United States Military Tribunals. See Strapatsas 2010, p. 455. 82 Koh and Buchwald 2015, p. 275. 83 Sayapin 2018; Sayapin 2020. 84 Sayapin 2018, p. 1097. Although they were not high-ranking State officials, a conviction for aggression is possible under the second alternative in Article 437(2) of the Criminal Code of Ukraine which does not require aggressors to fulfill the leadership clause. 85 Sayapin 2018, p. 1097. There is no English translation of the judgment available. 86 On the Yanukovych trial, see Sayapin 2020.

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nationality of Yanukovych. To establish the criminal responsibility of Yanukovych as a participant, the Ukrainian court indirectly passed judgment over the conduct of Russia. It concluded that Russia violated the UN Charter by committing an act of aggression against Ukraine.87 Such a conclusion does not suggest a rule that prohibits indirect judicial assessment of foreign State conduct. More recent practice stems from criminal investigations initiated in Ukraine,88 Poland,89 Lithuania,90 and Latvia91 in response to the Russian invasion of Ukraine in 2022. They may lead to criminal trials in States other than the aggressor State. Domestic courts would have to assess, as a preliminary question, the conduct of another State, namely whether Russia’s invasion amounts to an act of aggression. Beyond dismissive judicial practice, there is legislative material from the implementers of the Kampala Amendments which criminalizes aggression. These States enacted laws that cover cases, even if they are not the aggressor State. The German government, for example, clarified that the implementation of the crime of aggression aims to ensure that German courts are always able to exercise jurisdiction over cases “with a link to Germany”.92 The corresponding German jurisdictional provision is explicit in this endeavor. It includes cases where the crime of aggression “was directed against the Federal Republic of Germany”.93 A limitation by the par in parem non habet imperium principle to cases where the prosecuting State is the aggressor State is also not intended by the Austrian and Liechtenstein implementation. Their governments clarified that it is consistent with the spirit of the UN Charter that the enacted criminal provisions cover acts of aggression against their State and other States.94 The inclusion of scenarios where the implementing State is the victim State can be interpreted as a rejection of restricting jurisdiction to the aggressor State. 87

For the assessment of the Russian use of force, see Obolonsky District Court Kyiv, Yanukovych, Judgment, 24 January 2019, case no. 756/4855/17. 88 The criminal investigations launched in the Ukraine include crimes of aggression and war crimes. Among the suspects of aggression are ministers, deputies, military commanders, and instigators of war and propagandists of the Kremlin: https://mobile.twitter.com/GP_Ukr aine/status/1572841438236254208/photo/1, 15 September 2022. 89 The criminal investigations include allegations of the war of aggression committed by the Russian authorities and also the actions of Belarus, see https://www.gov.pl/web/sprawiedliwosc/dziala nia-ministerstwa-sprawiedliwosci-i-polskiej-prokuratury-wobec-wojny-na-ukrainie. Accessed 15 September 2022. 90 The criminal investigations include allegations of crimes against humanity, war crimes and aggression. Trials in absentia are possible under Lithuanian law. See https://www.delfi.lt/news/ daily/lithuania/pradetas-ikiteisminis-tyrimas-del-nusikaltimu-zmoniskumui-rusijai-uzpuolus-ukr aina.d?id=89606209. Accessed 15 September 2022. 91 The criminal investigations include allegations of war crimes, crimes against humanity and crimes against peace committed by the Russian armed forces, see https://vdd.gov.lv/en/news/pressreleases/vdd-initiates-criminal-proceedings-for-crimes-committed-by-russian-armed-forces-inukraine. Accessed 15 September 2022. 92 See Deutscher Bundestag 2016, p. 11. 93 See German Code of Crimes Against International Law, Section 1, second sentence. 94 See the almost identical explanatory memoranda, Austrian Government 2015, p. 44; Government of Liechtenstein 2018, p. 263.

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State practice that affirms the claimed restriction of jurisdiction to the aggressor State, however, could stem from the Kampala Conference. At this conference, the United States made a statement95 and States Parties adopted Understanding 5 to the Kampala Amendments.96 Concerned about the risk of domestic implementations of the crime of aggression and prosecutions of foreign officials, the United States claimed that “[s]uch domestic prosecutions would…ask the domestic courts to sit in judgment upon the State acts of other countries in a manner highly unlikely to promote peace and security”.97 If this statement was accompanied by a legal conviction that such prosecutions were prohibited, the practice of a single, even if “specially affected”, State does not suffice.98 Sufficient State practice in favor of a prohibitive rule is neither provided by Understanding 5 to the Kampala Amendments, even though it was adopted by a considerable number of States. The States Parties to the International Criminal Court chose the language that “it is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State.”99 The specification “committed by another State” draws attention to the domestic jurisdiction of States other than the aggressor State. It may raise doubts as to whether Understanding 5 merely “state[s] the obvious”.100 The ICC Statute and its amendments do not create a right or obligation for any State with respect to domestic legislation and adjudication. Nonetheless, it is too vague as to express the view of States Parties that there is a prohibitive rule under customary international law. The ambiguous language was chosen as it was acceptable to all delegations and placated the United States.101 The political context of the genesis of Understanding 5 led Hoven to assume that it is more an expression of the particular interests of the United States than the general view of States Parties.102 In view of the contextual assessment of the ambiguous Understanding 5, it is doubtful to consider it as affirming a prohibitive rule for States other than the aggressor State. Literature103 does not unanimously suggest that the principle of par in parem non habet imperium gives rise to a rule prohibiting the adjudicative jurisdiction of States other than the aggressor State. There is some support for the par in parem non

95

See the statement reprinted in Koh and Buchwald 2015, p. 274. Review Conference of the Rome Statute 2010, Annex III. 97 See the statement reprinted in Koh and Buchwald 2015, p. 274. 98 See, in detail, Heller 2018. 99 See Review Conference of the Rome Statute 2010, Annex III. 100 Kreß and von Holtzendorff 2010, p. 1216. Similarly, Clark 2010, p. 705, fn. 57; Jurdi 2013, p. 144; McDougall 2021, p. 376; Wrange 2017, p. 720. 101 On the genesis of Understanding 5, see Kreß et al. 2012, pp. 93 et seq.; Schabas 2016, pp. 317 et seq. 102 Hoven 2014, p. 365. 103 Which can serve as a subsidiary means for the determination of rules of customary international law, see Draft Conclusion 14 in International Law Commission 2018a. 96

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habet imperium principle, mainly from US scholars.104 The most intriguing contribution, however, stems from the former member of the International Law Commission Pellet.105 He is considered to be influential in shaping the Commission’s preference for aggressor State jurisdiction in the 1996 Draft Code of Crimes.106 He has since changed his mind. In 1995, Pellet declared that the exercise of jurisdiction by a third State was an “inconceivable and surrealistic situation”.107 In 2015, in contrast, he reacted to the same position of two US scholars by asserting that the “assumption that states have a monopoly on judging their own nationals in this context [of aggression] has no legal ground whatsoever and is refuted by practice”.108 He added that the “principle of universal jurisdiction over international crimes is now well established”.109 He took position in favor of victim State jurisdiction, as “the victim’s interest in holding leaders responsible is more pressing than that of the aggressor in exorcizing its demons ex post”.110 Several scholars agree with this rejection of the principle of par in parem non habet imperium. They describe the position of the International Law Commission in this Draft Code as “retrogressive” and as inconsistent with State practice.111

8.2.4 Conclusion to the Principle of Par in Parem non Habet Imperium An absolute prohibitive rule precluding the exercise of adjudicative jurisdiction by States other than the aggressor State neither naturally flows from the principle of par in parem non habet imperium nor is based on general practice accepted as law. The International Law Commission’s deduction of an absolute prohibitive rule conflicts with the original understanding of the par in parem non habet imperium principle in canon law. It also conflicts with its current use as a starting point in the field of immunities. It appears to be a “more venerable way”112 to argue with the multifaceted 104

See Koh and Buchwald 2015, pp. 274 et seq.; van Schaack 2012, p. 762; Veroff 2016. See also the Croatian scholars who “questioned the overall ability of national courts to prosecute and punish perpetrators of the crime of aggression relying on the par in parem imperium non habet maxim”, cited in Turkovi´c and Munivrana Vajda 2017, p. 877. 105 Pellet 2015. 106 See Strapatsas 2010, p. 452 (“From a political perspective, it would appear that the ILC was influenced by the position taken by one of its members, Alain Pellet…”). See also Wrange 2017, p. 716, fn. 35. 107 Without a prior filtration process, see International Law Commission 1995, p. 34. 108 Pellet 2015, p. 565. 109 Ibid., p. 565, fn. 54. 110 Ibid., p. 564. 111 For a rejection of the position of the International Law Commission due to contrary State practice, see Reisinger Coracini 2009, p. 731; Kestenbaum 2016, p. 74; Sayapin 2014, pp. 242 et seq.; Strapatsas 2010, pp. 452 et seq.; Wrange 2017, p. 714. 112 Yang 2012, p. 55.

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principle of sovereign equality. There is more State practice that militates against a prohibitive rule for the adjudicative jurisdiction of States other than the aggressor State. The dismissive State practice consists of the judicial practice of States other than the aggressor State from the aftermath of World War II and, more recently, from the Russian-Ukrainian conflict. It also consists of clarifications in legislative materials by some of the implementers of the Kampala Amendments. A contextual assessment of the ambiguous Understanding 5 to the Kampala Amendments as well as the statement made by the United States in Kampala do not necessarily point to a different conclusion. Several scholars, most notably one of the intellectual authors of the 1996 Draft Code of Crimes, reject the principle of par in parem non habet imperium as the source of a prohibitive rule precluding the adjudicative jurisdiction of States other than the aggressor State. Overall, it is convincing to dismiss such a prohibitive rule. There is not enough supportive State practice for a rule prohibiting the adjudicative jurisdiction of States other than the aggressor State. Only general practice accepted as law can rebut the presumed congruency between prescriptive and adjudicative jurisdiction. The blanket invocation of the vague principle of par in parem non habet imperium against foreign adjudicative jurisdiction does not suffice. Its origin, the sovereign equality of States, is also the basis for the legal framework for prescriptive jurisdiction.113 The International Law Commission’s claimed limitation to aggressor State jurisdiction would upset the balance between the competing sovereignty interests of States. A State has already respected sovereign equality when exercising prescriptive jurisdiction based on an accepted permissive rule. The claimed restriction of adjudicative jurisdiction would privilege the sovereignty of the State whose aggressive conduct intruded into the sovereign sphere of the other State in the first place.

8.3 Personal Immunity from Foreign Criminal Jurisdiction Immunities are other prohibitive rules relevant in criminal proceedings against foreign aggressors.114 Due to the leadership clause and the State act of aggression, persons fulfilling the elements of the crime of aggression are likely to benefit from immunities arising under customary international law. The crime of aggression can only be committed by persons in a “position effectively to exercise control over or to direct the political or military action of a State”.115 It requires them to plan, prepare, initiate or execute a State act. This triggers an overlap with the beneficiaries of immunities, which are linked to a specific status of the person within the State or to acts on behalf of the State.

113

As described in Chap. 7, Sect. 7.1.2. Diplomatic and consular immunities as well as immunities of special missions shall not be assessed in the following. But see, Kreicker 2017, pp. 687 et seq. 115 See ICC Statute, Article 8bis(1). 114

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Personal immunity or immunity ratione personae is a status-based form of immunity. It has a limited personal and temporal scope, but an absolute material one. Regarding its material scope, personal immunity from foreign criminal jurisdiction is less controversial than functional immunity. Personal immunity is purely procedural in nature.116

8.3.1 Rationale: Smooth Conduct of International Relations The underlying rationale of personal immunity is the pragmatic endeavor to ensure the smooth conduct of international relations.117 International relations require effective interstate communication. This communication would be endangered if certain State officials risked criminal prosecution abroad and could not perform their functions effectively.

8.3.2 Limited Personal, Limited Temporal and Absolute Material Scope The personal scope of this form of immunity is linked to its underlying rationale. Only those persons that play an important role in terms of international relations are the beneficiaries of personal immunity.118 These are – according to the Arrest Warrant case of the International Court of Justice – “holders of high-ranking office in a State, such as the Head of State, the Head of Government and the Minister of Foreign Affairs.”119 This limited range of beneficiaries typically fulfills the leadership clause of the crime of aggression. Their formal role usually puts them in a “position effectively to exercise control over or to direct the political or military action of a State”.120 Regarding the domestic criminal proceedings concerning the Russian

116

See Kreß 2021a, para 84; Pedretti 2015, p. 3. See ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, ICJ Reports 2002, p. 3, para 53: “to ensure the effective performance of their functions on behalf of their respective states”. Similarly, Commentary to Draft Article 3 in International Law Commission 2013a, para 2. See also Akande and Shah 2010, p. 818; Cryer et al. 2019, pp. 545 et seq.; Gaeta et al. 2020, p. 133; O’Keefe 2015b, para 10.20; Pedretti 2015, p. 28; Stahn 2019, p. 250. Others equally perceive sovereign equality of States as the underlying rationale of personal immunity, see International Law Commission 2013b, para 48; Fox and Webb 2015, p. 565; Gaeta 2002, p. 986. 118 See Commentary to Draft Article 3 in International Law Commission 2013a; Akande and Shah 2010, p. 818. 119 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, ICJ Reports 2002, p. 3, para 51. 120 See ICC Statute, Article 8bis(1). 117

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invasion of Ukraine in 2022, President Putin, Prime Minister Mishustin and Foreign Minister Lavrov would benefit from personal immunity. The Defense Minister is another senior member of government who might fulfill the leadership clause for purposes of the crime of aggression. Scholars discuss whether the Defense Minister benefits from personal immunity. The non-exhaustive enumeration of beneficiaries by the International Court of Justice (“such as”) and teleological reasons would support personal immunity for Defense Ministers.121 However, such an extension beyond the troika of high-ranking officials lacks consistent State practice.122 The automatic representational role of the Head of State, the Head of Government and the Minister of Foreign Affairs under international law also advocates against an extension.123 The Defense Minister, such as Russian Minister Shoigu, may be a high-ranking official whose prosecution by foreign courts for the crime of aggression would not be barred by personal immunity. The temporal scope of personal immunity is limited to the time in office.124 When the Head of State, Head of Government or Minister of Foreign Affairs leaves office, they are no longer in a position responsible for maintaining sustainable international relations. They are thus barred from availing themselves of this personal immunity.125 The conduct-based functional immunity, in contrast, may persist. The material scope of personal immunity, often described as “full immunity”, is absolute as it covers both private and official acts.126 This may be explained by the status-based nature of personal immunity, which is not concerned with the conduct in question.

121

Granting personal immunity to the minister who plays a pivotal role in representing the State in military matters could strengthen international relations. See International Law Commission 2013b, para 61; Commentary to Draft Article 3 in International Law Commission 2013a, para 8. 122 For details, see International Law Commission 2013b, para 63. There are some domestic court rulings that accord personal immunity to Defense Ministers as “the roles of defence and foreign policy are very much intertwined”. See also Foakes 2014, pp. 130 et seq.; Pedretti 2015, pp. 41 et seq. 123 See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980 (VCLT), Article 7(2)(a) which perceives the Head of State, Head of Government and Minister of Foreign Affairs as those representing the State. Article 21 of the Convention on Special Missions appears to presuppose the existence of customary international law immunities for the same group of State officials. See also International Law Commission 2013b, para 59; Borghi 2003, pp. 202 et seq.; Foakes 2014, p. 111; Kreicker 2007b, pp. 712 et seq. 124 See ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, ICJ Reports 2002, p. 3, para 61; Draft Article 4 in International Law Commission 2013a, para 2 and Commentary thereto; International Law Commission 2013b, paras 75 et seq.; Institut de Droit International 2009, Article III(2); Borghi 2003, p. 53. 125 In the same vein, O’Keefe 2015b, para 10.18; Kreicker 2007a, pp. 744 et seq. 126 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, ICJ Reports 2002, p. 3, paras 54 et seq; Commentary to Draft Article 3 in International Law Commission 2013a, para 3; Fox and Webb 2015, p. 594.

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8.3.3 Applicability Even If Commission of Crime of Aggression In contrast to functional immunity, there is no exception to or limitation of personal immunity even if the beneficiary committed a crime under international law.127 Interferences in the activity of the high-ranking representatives of a State abroad shall be prevented categorically to safeguard the smooth interaction between States.128 From the perspective of the victim State, one may cynically ask whether this rationale ceases to apply when the aggressor State unilaterally ends the smooth interaction by using manifestly unlawful force against it.129 This illustrates the shortcomings of perceiving the smooth interaction between States as the rationale of personal immunity. It does not challenge, however, the mainstream view on the absence of an exception for crimes under international law in domestic criminal proceedings.

8.3.4 Conclusion to Personal Immunity Personal immunity constitutes a prohibitive rule under customary international law to the exercise of adjudicative jurisdiction over incumbent foreign Heads of State, Heads of Government and Ministers of Foreign Affairs who committed the crime of aggression. Recalling that the leadership clause of the crime of aggression does not require a formal position within the State but persons in a “position effectively to exercise control over or to direct the political or military action of a State”,130 personal immunity is a prohibitive rule which carves out only a small, albeit important, circle of potential aggressors. When the Head of State, Head of Government and Minister of Foreign Affairs leave office, however, their criminal prosecution in foreign States could still be barred by functional immunity. It is therefore particularly important to assess the applicability of functional immunity to the crime of aggression.

127

Akande and Shah 2010, p. 819; Cryer et al. 2019, p. 508; Gaeta 2002, pp. 983 et seq.; O’Keefe 2015b, paras 10.41 et seq.; Pedretti 2015, pp. 304 et seq. 128 Akande and Shah 2010, p. 851; Gaeta 2002, p. 985; Kreß 2021a, para 89; Pedretti 2015, pp. 399 et seq. See also Institut de Droit International 2001, Article 2: “In criminal matters, the Head of State shall enjoy immunity from jurisdiction before the courts of a foreign State for any crime he or she may have committed, regardless of its gravity.” 129 For a similar thought, but not necessarily with respect to personal immunity, see Haque 2019, p. 446: “This suggests that the rule of jurisdictional immunity ceases to apply in war, when comity is abandoned, and international intercourse is neither peaceful nor smooth.” 130 Emphasis added. See ICC Statute, Article 8bis(1).

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8.4 Functional Immunity from Foreign Criminal Jurisdiction It is highly relevant, but more controversial, whether functional immunity bars the exercise of foreign adjudicative jurisdiction over the crime of aggression. If functional immunity was such a prohibitive rule, the relevance of domestic implementations of the crime of aggression would be dramatically reduced. According to Chap. 7, States have the right to enact legislation that also covers future situations in which they are aggressed or a third State.131 If functional immunities were applicable, their courts would not be allowed to apply these laws in proceedings against any current or former foreign State official without the waiver of immunity by the aggressor State. Potential aggressors tend to fall under the category of “State official” as understood under the law of immunities, which means that functional immunities have the potential to affect all domestic aggression proceedings. While scholars used to share the “virtually unanimous” view that functional immunity does not apply to “crimes under international law”,132 it recently became more controversial, particularly among the members of the International Law Commission. Their “deep division”133 on this question is reflected in the provisional134 adoption in 2017 of a respective draft article by vote, instead of consensus.135 The latter would have been the Commission’s common modus operandi.136 In Draft Article 7 of “The Immunity of State Officials from Foreign Criminal Jurisdiction”,137 the International Law Commission decided by majority vote that functional immunity shall not apply in respect of a closed list of “crimes under international law”. This list includes genocide, crimes against humanity and war crimes, but excludes the crime

131

See Chap. 7, Sect. 7.8. See Kreicker 2007a, p. 180 with an extensive list of reference (“nahezu einhellig”). On this development, see Kreß 2021a, para 24. 133 See for this description given by the Czech member Šturma 2019, p. 36. 134 The final adoption takes places after the second reading, which takes place after the ILC has provisionally adopted all draft articles and after States have reacted to the draft articles in the Sixth Committee of the General Assembly. 135 On the adoption, see International Law Commission 2017b, p. 164. 21 members voted in favor, eight voted against, one member abstained. 136 Voting is a rare event in the Commission, see Tladi 2019, p. 171. An adoption by vote is not a flaw. The draft articles that became the basis of the Vienna Convention of the Law of Treaties were also only adopted by vote. 137 See the work of the International Law Commission on “Immunity of State officials from foreign criminal jurisdiction”: http://legal.un.org/ilc/guide/4_2.shtml. Accessed 15 September 2022. 132

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of aggression.138 The dynamics139 surrounding the adoption of Draft Article 7 did not allow the additional inclusion of the crime of aggression as the generally more controversial but “supreme international crime”.140 A small group of members even challenged the existence of sufficient State practice supporting the inapplicability of functional immunity with respect to less controversial crimes under international law.141 The decision not to include the crime of aggression, however, does not end the debate.142 The non-inclusion has been criticized by several members of the International Law Commission,143 scholars144 and some States.145 It should be kept in mind that the International Law Commission does not adopt black letter law. It is rather a “pre-legislature” for the UN General Assembly. It prepares draft articles that may eventually be taken up in international treaties. Its work constitutes a valuable, but “subsidiary means” for ascertaining customary international law.146 Hence, the

138

See Draft Article 7(1) in International Law Commission 2017b, pp. 176 et seq.: “Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance.” For the discussion of Draft Article 7, see Ascensio and Bonafè 2018; Forteau 2018; Kreß 2021a, paras 24 et seq.; Murphy 2018; Shen 2018; Tladi 2019; Webb 2018; van Alebeek 2018. 139 Some members already opposed Draft Article ab initio and did not support sending it for further discussion to the Drafting Committee. See also Commentary to Draft Article 7 in International Law Commission 2017b, para 8. 140 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421. 141 See, e.g., the statements made by Kolodkin, Murphy, Wood and Huang in International Law Commission 2017a, pp. 9 et seq. 142 On the reasons why neither the Special Rapporteur, nor the drafting committee preferred the inclusion of the crime of aggression, see International Law Commission 2016b, paras 222 et seq. 143 9 members in total: Mr. Hassouna: Egypt; Mr. Hmoud: Jordan; Mr. Jalloh: Sierra Leone; Mr. Murase: Japan; Mr. Nguyen: Vietnam; Mr. Ouazzani Chahdi: Morocco; Mr. Park: Republic of Korea; Mr. Tladi: South Africa; Mr. Valencia-Ospina: Colombia. See International Law Commission 2017c, p. 6, 11, 14; International Law Commission 2017d, p. 14; International Law Commission 2017e, p. 16. 144 Ascensio and Bonafè 2018, p. 845 who cynically state: “La limitation de la compétence du juge interne - la permanence de l’immunité - découlerait du caractère étatique de l’acte d’agression, donc de la nature matérielle de immunite de l’agent!”; Clark forthcoming (“unconvincing discussion”); Kittichaisaree 2018, p. 104 (“it is incorrect to state that no national court has ever prosecuted the crime of aggression”); Kreß 2021a, para 49 (“as cursory as weak”); Ruys 2017, p. 32; Tladi 2019, p. 180, fn. 88 (“There was no legal reason whatsoever that other crimes had been included, yet aggression, a crime that had featured in the work of the Commission since 1950, had been excluded…”). But see in defense of the non-inclusion the reasoning of the Czech member Šturma 2019, pp. 37 et seq. 145 See, e.g., the statements made at the Sixth Committee of the 72nd session of the UN General Assembly in 2017 and its 73rd session in 2018 by: Germany, Ukraine, Portugal, Slovenia, Estonia and Nicaragua. Available at www.un.org/en/ga/sixth. Accessed 15 September 2022. In detail, see Sect. 8.4.5.5 below. 146 See International Law Commission 2018a, Draft Conclusion 14. See ICJ Statute, Article 38(1)(d).

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adoption of Draft Article 7 does not render the assessment of customary international law redundant. Before discussing whether functional immunity constitutes a prohibitive rule under customary international law regarding the crime of aggression, it is first necessary to clarify the general understanding of functional immunity.

8.4.1 Rationale: Consequence of State Immunity or Something Else? Functional immunity is often described as a logical consequence of State immunity.147 Since States are abstract entities that cannot act without “human instruments”, the actions of these instruments are ultimately actions of the State, for which the individual cannot be held responsible.148 States would thus circumvent State immunity when prosecuting State officials. They would indirectly pass judgment over the acts of another State. This contradicts the sovereign equality of States,149 often described by the Latin phrase of par in parem non habet imperium.150 An alternative rationale of functional immunities, which is also based on the respect for State sovereignty,151 is explored by van Alebeek and supported by Kreß. It relies on the Blaškic judgment of the Yugoslavia Tribunal. It is premised on the two-limb152 assumption that first, “States are free to determine the mandate of their officials” and secondly, “they have exclusive jurisdiction to establish whether or not officials acted within the bounds of their mandate and hence whether or not they incurred responsibility in their personal capacity.”153 As a consequence, States are, in principle, not allowed to question another State’s freedom to determine the mandate 147

See, e.g., Foakes 2014, pp. 137 et seq.; Gaeta et al. 2020, pp. 130 et seq.; Kreicker 2017, p. 679; O’Keefe 2015b, paras 10.20, 10.45; Webb 2016, p. 85. For a critical view and an alternative rationale, see van Alebeek 2008; van Alebeek 2019, pp. 498 et seq.; Kreß 2021a, paras 34 et seq. 148 See Ambos 2018, §7 mn. 101; Gaeta et al. 2020, pp. 130 et seq.; Gaeta 2002, p. 976; Kreicker 2017, p. 679; Stahn 2019, p. 250; Webb 2016, p. 85. 149 See also ICTY (AC), Blaškic, Judgment, 29 October 1997, para 41; Cryer et al. 2019, p. 545; O’Keefe 2015b, para 10.47; Pedretti 2015, p. 20. 150 For a critique whereby the link of functional immunity to State immunity “injects the domestic act of State doctrine in the international rule of functional immunity”, see van Alebeek 2019, p. 499; Kreß 2021a, para 33. 151 Van Alebeek 2019, p. 501; Kreß 2021a, para 34. 152 For the description of two “legs”, see van Alebeek 2019, pp. 519 et seq. 153 See Kreß 2021a, paras 34 et seq. See also van Alebeek 2008, pp. 112 et seq.; van Alebeek 2019, pp. 498 et seq. For the original language, see ICTY (AC), Blaški´c, Judgment, 29 October 1997, para 41: “It is well known that customary international law protects the internal organization of each sovereign State: it leaves it to each sovereign State to determine its internal structure and in particular to designate the individuals acting as State agents or organs. Each sovereign State has the right to issue instructions to its organs, both those operating at the internal level and those operating in the field of international relations, and also to provide for sanctions or other remedies in case of non-compliance with those instructions.”

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of its officials. They also cannot inquire whether the other State’s officials incurred personal responsibility for acts committed in excess of the mandate.154 If the State official stays within the mandate, they remain the instrument of the State without incurring personal responsibility or facing trial. This rationale can better explain why functional immunity does not apply with respect to “crimes under international law”, which is later discussed.155

8.4.2 Limited Material, Broad Personal and Broad Temporal Scope Functional immunity, or immunity ratione materiae, is conduct-based.156 Its barring effect depends upon the materia, the matter or conduct, and not the status of the person. It is limited to acts performed in an official capacity, or to “official acts”.157 This explains why functional immunity has a broader personal and temporal scope than personal immunity. It applies to all persons acting in an official capacity, not only to high-ranking State officials.158 Functional immunity is not limited to time in office because the nature of an official act remains unchanged.159 If functional immunity was applicable without limitation, which will be assessed in the following sections, a person who commits a crime of aggression would typically benefit from functional immunity.160 This bars foreign courts from prosecution even after the official has left office. The individual aggressor typically performs “acts in an official capacity”, which fall into the material scope of functional immunity. This

154

Van Alebeek 2019, p. 500. See Sect. 8.4.6.2. 156 See International Law Commission, Report on the Work of its Sixty-Seventh Session (2015) A/70/10, para 197; Akande and Shah 2010, p. 825; Pedretti 2015, p. 163; Stahn 2019, p. 250; van Alebeek 2019, p. 496. 157 For the understanding of “act performed in an official capacity”, see Commentary to Draft Article 2(f) in International Law Commission 2016a, p. 352; O’Keefe 2015b, paras 10.60 et seq., for his preference for “acts performed in official capacity”, see para 10.64; van Alebeek 2019, p. 496. An “act performed in official capacity” does not require “some notionally proper official capacity as measured by the standards of the public policy of the forum state”. It suffices that the person acted in the exercise of actual State authority, see O’Keefe 2015b, para 10.63. 158 See Commentary to Draft Article 2(e) in International Law Commission 2014, paras 8 et seq.; Commentary to Draft Article 5 in International Law Commission 2014, paras 1 et seq. Foakes 2014, p. 136; Fox and Webb 2015, p. 571; van Alebeek 2008, p. 2. It is not necessary that the person is formally part of the State’s public service, see Akande 2004, pp. 412 et seq.; Kreicker 2007a, pp. 116 et seq. 159 See Borghi 2003, p. 53; Fox and Webb 2015, p. 570; Gaeta 2002, p. 975; O’Keefe 2015b, para 10.56. 160 Similarly, Pedretti 2015, p. 356. See also McDougall 2021, p. 389 who refers to the leadership clause to conclude that “it seems very likely that the majority of perpetrators will be… de facto or de jure State officials”. 155

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is due to the underlying State act of aggression,161 the individual plans, prepares, initiates, or executes. It is also due to the leadership clause, requiring a “position effectively to exercise control over or to direct the political or military action of a State”. Even if the definition of the crime of aggression – unlike torture under the Torture Convention – does not explicitly require a person “acting in an official capacity”,162 the official nature of the act appears to be an “essential ingredient”163 of the crime of aggression. For this reason, the chapter will not further explore the paradoxical view that crimes under international law cannot be “official acts”. There is case law arguing that these crimes “constitute neither normal State functions nor functions that a State alone (in contrast to an individual) can perform”.164 This explanation has been criticized elsewhere.165 It conflicts with the aggression’s essential ingredient of an official act. In the words of Judge van den Wyngaert in the Arrest Warrant case: “Some crimes under international law (e.g. certain acts of genocide and of aggression) can, for practical purposes, only be committed with the means and mechanisms of a State and as part of a State policy. They cannot, from that perspective, be anything other than ‘official’ acts.”166

161

The notion “State act of aggression” is not used in Article 8bis of the ICC Statute, but it refers to “use of armed force by a State”. 162 See Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987 (Torture Convention). 163 Similarly, Lord Millett in House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 273 on the definition of torture under the Torture Convention. See Crawford 2013, p. 667 who lists torture and the crime of aggression as those crimes that specifically require as an element of the crime that the person was acting in his or her official capacity. See also, Introduction in van der Wilt et al. 2009, p. 13 who argues that the systemic nature of aggression is particularly clear. 164 ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports 2002, p. 3, para 85; see also Lord Browne-Wilkinson House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 203 (“I believe there to be strong ground for saying that the implementation of the torture as defined by the Torture Convention cannot be a state function”). 165 Ambos 2021, pp. 533 et seq.; Akande and Shah 2010, p. 831; Caban 2016, pp. 314 et seq.; Cassese 2002, pp. 868 et seq.; d’Argent and Lesaffre 2019, pp. 631 et seq.; Kreicker 2017, p. 680. 166 See ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, dissenting opinion of Judge van den Wyngaert, ICJ Reports 2002, p. 3, para 36.

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8.4.3 Methodological Framework for Determining the (In-) Applicability to the Crime of Aggression Under Customary International Law In light of the broad personal and temporal scope of functional immunity, it is important to assess its applicability to the crime of aggression under customary international law. The methodological framework is based on the presumed congruency between prescriptive and adjudicative jurisdiction.167 States are, in principle, allowed to exercise adjudicative jurisdiction over the crime of aggression based on the permissive rules to exercise prescriptive jurisdiction, as established in the previous chapter. Hence, they can exercise adjudicative jurisdiction based on territoriality, the nationality principle, the protective principle, arguably passive personality and universality.168 This presumption can be rebutted, however, by a prohibitive rule stating the contrary under customary international law. Functional immunity may be such a prohibitive rule under customary international law.169 Its applicability to the crime of aggression under customary international law can be assessed following two approaches. They differ as to the burden of proving aggression-specific practice. The first approach takes functional immunity as a well-established prohibitive rule under customary international law. It is generally applicable to “acts performed in an official capacity”. There may be, however, a customary international law exception or limitation170 for certain crimes, such as the crime of aggression.171 Under this approach, foreign adjudicative jurisdiction requires enough aggression-specific State practice supporting an exception or limitation to the generally applicable prohibitive rule of functional immunity. The second approach does not perceive functional immunity as a given fact. It requires aggression-specific practice supporting the applicability of functional immunity. Such a reversed burden of proof is reminiscent of the approach taken in 167

See, in general, Kreß 2006, p. 565; Kreß 2002, pp. 830 et seq. See also Geneuss 2013, pp. 37 et seq. 168 The applicability of universality depends on the weight given to Nuremberg and to deductive reasoning. See Chap. 7, Sect. 7.7.6. 169 Geneuss 2013, p. 128. 170 On the difference between using the term of “limitation”, “exception”, or the more neutral term of “non-applicability” to explain that functional immunity does not bar the exercise of domestic jurisdiction, see International Law Commission 2016b, paras 170 et seq. 171 It seems as if this approach was adopted by Akande and Shah 2010, p. 840; Pedretti 2015, p. 95. This is the approach adopted by Special Rapporteur Escobar-Hernández, who justifies the applicability of functional immunity to the crime of aggression, inter alia, by the fact that “there do not appear to be any cases of State practice in which the crime of aggression has been characterized as a limitation or exception to the exercise of immunity”, see International Law Commission 2016b, para 222. It is also more consistent with the approach taken in Chap. 7 to assume in principle the applicability of functional immunity to all “acts performed in official capacity” before considering exceptions or limitations. The principles of jurisdiction were presumed to apply to any crime, including the crime of aggression, unless their applicability depends on the nature of the crime.

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the Jordan Referral re Al-Bashir judgment of the International Criminal Court with respect to personal immunities.172 The first approach, however, seems to be more common. It is also less controversial, particularly since the International Criminal Court has only claimed the reversed burden of proof for its own jurisdiction.173 Irrespective of the approach, customary international law is classically determined inductively.174 It requires the establishment of two elements, namely general practice and opinio iuris.175 Additionally, the assessment will turn to deductive reasoning “to confirm the results reached by induction, replace or lower the standard of inductive evidence”.176 Consistent with the previous chapter, a context-sensitive approach is warranted when ascertaining customary international law.177 When assessing the “generality” of the aggression-specific practice, particular weight should be given to its inhibitory context. Practice seems to be inhibited due to the required State involvement in this leadership crime, the rare occurrence of “manifest” violations of the UN Charter and aggression’s legacy as a “crime in limbo”.178 The following assessment is based on aggression-specific State practice, despite the tendency among scholars to address the customary (in-)applicability of functional immunity for “crimes under international law” in general.179 The recent disagreement among the members of the International Law Commission, however, shows that the picture of the previously “virtually unanimous” view among scholars has cracks. It shows that the inapplicability in respect of a specific crime can be challenged if there is not enough crime-specific State practice.

172

See ICC (AC), Al Bashir (Jordan), Judgment, 6 May 2019, para 116: “It would be wrong to assume that an exception to the customary international law rule on Head of State immunity applicable in the relationship between States has to be established; rather the onus is on those who claim that there is such immunity in relation to international courts to establish sufficient State practice and opinio juris.” On this, see Kreß 2019, pp. 6 et seq. 173 See also ICC (AC), Al Bashir (Jordan), Judgment, 6 May 2019, para 116 where it emphasized “the fundamentally different nature of an international court as opposed to a domestic court exercising jurisdiction over a Head of State.” 174 Commentary to Draft Conclusion 2 in International Law Commission 2018a, para 5. 175 See Article 38(1)(b) ICJ Statute “general practice accepted as law”. See, in detail, Chap. 7, Sect. 7.7.3.1. 176 See Talmon 2015, p. 427, 442 177 See Chap. 7, Sect. 7.7.3.3. 178 Similarly on the application of the two-element approach in international humanitarian law, human rights law and international criminal law, see Kittichaisaree 2018, p. 165. He argues that the context must be considered, such as the rare occurrence of armed conflicts and the confinement of human rights violation to some States as well as the tendency of those States to shield perpetrators. See also International Law Commission 2016b, para 188. 179 For a general approach to the inapplicability of functional immunity to crimes under international law, see Ambos 2021, pp. 533 et seq.; Cassese et al. 2013, pp. 241 et seq.; Cryer et al. 2019, pp. 514 et seq.

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8.4.4 Legal Nature of Functional Immunity A clarification of the ambiguous180 legal nature of functional immunity helps to select relevant State practice. While some argue that functional immunity is procedural in nature,181 Ascensio and Bonafè claim that the perception of functional immunity as a substantive defense is “far from being isolated in doctrine”.182 The assumption of being purely procedural would exclude provisions or claims by courts about the “irrelevance of official position” from the pool of relevant State practice.183 Moreover, any inference from the punishability of certain conduct to the inapplicability of functional immunity would be precluded. It would be an improper inference from a substantive to a procedural matter.184 Such a restrictive approach, however, conflicts with the seemingly ambivalent nature of functional immunity. The ambivalent nature can be explained by the historically interchangeable use of the substantive concept of the irrelevance of official position and the non-applicability of immunities. The International Military Tribunal used the concepts interchangeably.185 It cited Article 7 of the IMT Charter,186 dealing with the irrelevance of official position, and subsequently stated that “he who violates the laws of war cannot obtain immunity”.187 The International Law Commission also tended to an interchangeable use of the concepts in the Commentaries to the Nuremberg Principles adopted in 1950 and the Commentaries to the Draft Code of Crimes against the Peace and Security of Mankind adopted in 1996. While Principle III, and similarly Draft Article 7, would declare in substantive terms that the “official position…shall not be considered as

180

Ambos 2021, p. 532; Ascensio and Bonafè 2018, p. 832 whereby the claimed procedural nature of functional immunity is anything but certain (“tout sauf certain”). Wrange 2017, p. 722. On the distinction between the substantive defense of “official capacity” and the procedural defense of functional immunity, see Tladi 2020, paras 61 et seq. 181 See International Law Commission 2008b, para 102 (g); see also the position of some members of the International Law Commission in International Law Commission 2017b, pp. 181 et seq.; Kreicker 2007b, pp. 1294 et seq. 182 See Ascensio and Bonafè 2018, p. 834. For the view that functional immunity is a substantive defense, see Caban 2016, p. 309; Cassese 2002, p. 863; Pedretti 2015, p. 3, 307; van Alebeek 2008, p. 114; Wrange 2017, p. 722. 183 For a discussion on whether practice supporting the principle of the irrelevance of official status of an individual in respect of crimes under international law would necessarily entail the non-applicability of functional immunity from foreign criminal jurisdiction, see International Law Commission 2008a, para 203. 184 For this view of some members of the International Law Commission, see International Law Commission 2017b, p. 182. 185 For this view, see Kreß 2021a, paras 48, 62. 186 Charter of the International Military Tribunal, Annex to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945 (IMT Charter). 187 See IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447.

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freeing them from responsibility”,188 the commentaries thereto understand them as also implying the non-applicability of immunities.189 Special Rapporteur Escobar Hernández also found in 2017 that it appears difficult to support in absolute terms the distinction of functional immunity as a substantive defense and a procedural bar.190 The Statutes of both the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda only contain a provision on the irrelevance of official position.191 However, they were also understood as providing for the inapplicability of functional immunities.192 The ICC Statute now distinguishes between the concepts of the irrelevance of official position and the non-applicability of functional immunity.193 Nonetheless, the previous understanding of the link between the concepts suggests an ambivalent nature of functional immunity.194 To pay deference to the historically interchangeable use of the substantive concept of the irrelevance of official position and the non-applicability of immunities, the envisaged analysis will not consider functional immunity as a purely procedural matter.

8.4.5 Inductive Approach: Aggression-Specific State Practice The inductive assessment of the (in-)applicability of functional immunity to crimes under international law often starts with the discussion of State practice prior to Nuremberg.195 The core of the aggression-specific State practice, however, was 188

Principle III in International Law Commission 1950; Draft Article 7 in International Law Commission 1996. 189 See Commentary to Principle III in International Law Commission 1950, para 103. Similarly, Commentary to Draft Article 7 in International Law Commission 1996, para 6. 190 See International Law Commission 2016b, para 150. See also Akande and Shah 2010, p. 817 (“both a substantive and a procedural function”); Kreß 2021a, para 35 (“combines considerations of substance and procedure”). 191 See Statute of the International Tribunal for the former Yugoslavia, adopted 25 May 1993 by UN Security Council Resolution 827 (ICTY Statute), Article 7(2); Statute for the International Criminal Tribunal for Rwanda, adopted 8 November 1994 by United Nations Security Council Resolution 955 (ICTR Statute), ICTR Statute, Article 6(2). 192 Gaeta 2002, pp. 981 et seq. 193 See Article 27 of the ICC Statute distinguishes the irrelevance of official position as a substantive defense in para 1 (“shall in no case exempt a person from criminal responsibility”) and the nonapplicability of immunities as a procedural bar in para 2 (“shall not bar the Court”). 194 Even scholars do not necessarily perceive Article 27(1) of the ICC Statute as only referring to the irrelevance of official position but also to functional immunity. See Gaeta 2002, pp. 990 et seq.; Triffterer and Burchard 2021, paras 16 et seq. See also Commentary to Draft Article 7 in International Law Commission 1996, para 6 whereby the “absence of any procedural immunity” is an “essential corollary of the absence of any substantive immunity or defence”. 195 See Cassese et al. 2013, pp. 241 et seq.; Gaeta 2002, pp. 979 et seq.; Kreicker 2007a, pp. 182 et seq.; Kreß 2021a, paras 54 et seq.; Pedretti 2015, pp. 232 et seq.

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generated in Nuremberg and endorsed in its aftermath. Affirmations at the domestic judicial, legislative and executive level followed in a reduced number. Literature helps to engage in a discussion of the identified State practice.

8.4.5.1

Peace Negotiations after World War I

The responsibility of the former German Kaiser for provoking the war was at the heart of the debate after World War I.196 The generated practice is elsewhere considered as “a weighty body of State practice supporting the absence of immunity” for war crimes and crimes against humanity.197 However, the preparation of the Peace Conference in Paris in 1919198 and the concluded Treaty of Versailles199 do not provide relevant aggression-specific practice for the question of functional immunities before domestic courts. In their preparation of the Peace Conference in 1919, France200 and the United Kingdom201 both issued a legal memorandum. These seem to reflect their conviction that functional immunity was inapplicable in proceedings against the German Kaiser for the authorship of war.202 Only this type of immunity would remain for a former head of State. It may be doubted, however, whether the French and British support for the inapplicability of functional immunity extends to proceedings before domestic

196

Kreß 2021b, p. 186. Kreß 2021b, p. 183. On this body of State practice, see also Gaeta 2002, pp. 979 et seq.; Kreß 2021a, paras 55 et seq. 198 The conference is often referred to as the “Preliminary Peace Conference” due to the absence of the vanquished countries, see Kreß 2021b, p. fn. 3. 199 Treaty of Versailles, 28 June 1919. 200 For the French legal memorandum, see Larnaude and de Lapradelle 1919. The French President Clemenceau commissioned the French professors Larnaude and de Lapradelle to provide the draft, see Kreß 2021b, p. 173; Payk 2018, p. 112. The report written by Larnaude and de Lapradelle was published by the French Ministry of War in November 1918. See Jescheck 1952, p. 47; Sellars 2017, p. 24. 201 See Memorandum Submitted by the British Delegates, 13 February 1919, in Paris Peace Conference 1919. On the British position, see also Jescheck 1952, pp. 47 et seq. 202 See Larnaude and de Lapradelle 1919, pp. 150 et seq. whereby impunity for the German emperor, who committed the crime of “premeditated unjust war”, would do irreparable harm to the “new international law” which “no longer knows of irresponsible authorities, even at the summit of hierarchies”. See also Memorandum Submitted by the British Delegates, 13 February 1919, in Paris Peace Conference 1919, pp. 28 et seq., cited in ICC (AC), Al Bashir (Jordan), Judgment, 6 May 2019, concurring opinion of Judges Eboe-Osuji, Morrison, Hofmanski and Bossa, fn. 142 whereby “the vindication of principles of International Law and the laws of humanity, which he has violated, would be incomplete if he were not brought to trial”. See also the comment of the British Prime Minister at that time, Lloyd George, who states that “The Kaiser must be prosecuted. The war was a crime…The men responsible for this outrage on the human race must not be let off because their heads were crowned when they perpetrated the deed.” See Lloyd George 1939, p. 109. 197

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courts. They only recommended putting the former Kaiser before an international,203 or inter-allied tribunal.204 The final report205 of the “Commission on Responsibilities” is also not relevant for the aggression-specific assessment of immunities. The Commission was established by the Peace Conference of 1919 for the purpose of inquiring into the responsibility of the authors of the war and the enforcement of penalties.206 It is elsewhere considered as practice suggesting the inapplicability of functional immunity,207 but only does so with respect to “offences against the laws and customs of war or the laws of humanity”.208 Omitting the provocation of war follows the general stance of the final report. This report dismissed the idea of charging the former German Kaiser with provoking the war,209 as it was not yet considered as contrary to international law.210 The adopted Treaty of Versailles of 1919 readmitted the idea. It publicly arraigned in Article 227 the former Kaiser for “a supreme offence against international morality and the sanctity of treaties” and announced that a “special tribunal will be constituted to try the accused”.211 However, the relevance of Article 227 of the Treaty of Versailles for the question of immunities of aggressors from domestic jurisdiction can be challenged. The charge was of rather political nature and the proceedings were envisaged before an inter-allied instead of domestic tribunal.212 Article 228 of the Treaty of Versailles does not provide aggression-specific practice either. It only supports the absence of functional immunity for war crimes, namely “acts in violation of the law and customs of war”.213 203

The French memorandum did not consider national courts as being competent to adjudicate crimes under international law. It argues that it would be “an antinomy between the nature of the crime and the character of the criminal on the one hand, and the legal nature of the tribunal on the other hand.” See Larnaude and de Lapradelle 1919, p. 152. See also Jescheck 1952, p. 47. 204 On the British position, see Jescheck 1952, p. 49. 205 Adopted on 29 March 1919 by the majority of the representatives from 10 States, see Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920, pp. 95 et seq. See Schabas 2018, p. 117. 206 See Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920, p. 95. On the Commission, see the chapter in Schabas 2018, pp. 99 et seq. 207 See, e.g., Pedretti 2015, pp. 232 et seq. 208 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920, p. 117. Although the representatives of the United States declared reservations to the final report, their dissent did not concern the absence of immunity of former Heads of States from criminal proceedings. For this remark, see Kreß 2021a, para 56. 209 See Schabas 2018, p. 128. See also Jescheck 1952, p. 60. 210 See Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920, p. 117; Jescheck 1952, p. 52. 211 See Treaty of Versailles, 28 June 1919. On the creation of Article 227, see Sellars 2017, p. 35. 212 On the political nature of the proceedings and of the charge against the Kaiser, see Cassese et al. 2013, p. 241, fn. 40; Jescheck 1952, p. 60; Kreß 2021b, pp. 175 et seq.; Payk 2018, pp. 508 et seq. The relevance is not challenged by the consent of Germany to the prosecutions, which was not required in Article 227 of the Treaty of Versailles. See Kreß 2021a, para 56. For a critical view, see Kreicker 2007a, p. 186; van Alebeek 2008, p. 205. 213 Kreß 2021b, p. 185; Pedretti 2015, p. 234.

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433

Nuremberg and Its Aftermath: Claim and International Endorsement?

Nuremberg has been described as a “watershed” moment where functional immunity was made unavailable for crimes under international law.214 The legacy of Nuremberg is intrinsically linked to its main charge against the Nazi leaders—the crime of aggression.215 It is claimed that Nuremberg provides the core of the aggression-specific practice supporting the inapplicability of functional immunity. This led, together with its numerous restatements in the aftermath of Nuremberg, to the crystallization of a respective rule under customary international law for criminal proceedings irrespective of the national or international character of the court. The watershed moment towards the irrelevance of official position and the inapplicability of immunities was famously declared by the International Military Tribunal at Nuremberg in its judgment: “The principle of International Law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by International Law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares: ‘The official position of defendants, whether as heads of State, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.’ On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity when acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under International Law.”216

The general language of the judgment does not suggest it was limited to proceedings before international tribunals.217 The International Military Tribunal did not rely on its character as an international tribunal to claim that functional immunities had no relevance.218 Instead, it seems to stipulate the absence of protection for acts committed in an official capacity as the “very essence”,219 the “foundational logic”220 and the “fabric”221 of international criminal law. When acts are condemned

214

Cassese et al. 2013, p. 242; Gaeta 2002, p. 981. At that time known as the “crime against peace”. See IMT Charter, Article 6(a). 216 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447. 217 In this vein, Kreß 2021a, para 46. For the contrary view, see Tladi 2019, p. 182 whereby “[p]ractice from international tribunals is therefore excluded, save where it expressly concerns immunity from national authorities.” 218 See, in contrast, SCSL(AC), Taylor, Decision, 31 May 2004, para 51 (“no relevance to international criminal proceedings which are not organs of a state but derive their mandate from the international community”). 219 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447. See also Werle 2021. Similarly with respect to war crimes, Lauterpacht 2012, pp. 98 et seq. 220 Kreß 2021a, para 41. 221 Cassese et al. 2013, p. 248. 215

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as criminal by international law, it argues, the “authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment”.222 Although crimes under international law are now also committed by non-State actors,223 the origin of international criminal law is deeply rooted in crimes committed by State officials.224 The application of the “new paradigm”225 of international criminal law would thus have been impossible if functional immunity, or any defense for acting in an official capacity, had been available for those State officials. The application of the former had to result in the inapplicability of the latter. The Tribunal refers almost simultaneously to the substantive defense of irrelevance of official position in Article 7 of the IMT Charter and to the absence of functional immunity when acting in pursuance of the authority of the State. This suggests that they were not systematically distinguished at that time.226 It suggests that the inapplicability of functional immunity is intrinsically linked to the concept of individual criminal responsibility for crimes under international law. Given that the Tribunal regarded the IMT Charter as an “expression of international law existing at the time of its creation”,227 the claimed irrelevance of the official position in Article 7 of the IMT Charter and the corresponding rejection of functional immunities in the judgment were accompanied by opinio iuris, a legal conviction to act in compliance with law. The general language of the judgment, the foundational logic of international criminal law and the centrality of the crime of aggressive war as the main charge suggest that the practice of the International Military Tribunal is also relevant for domestic aggression proceedings.228 The International Law Commission, however, was skeptical of the practice of international criminal courts and tribunals when assessing the customary applicability of functional immunity vis-à-vis domestic courts.229 This contrasts with the classical approach in literature on functional immunities before 222

IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447. Except for the crime of aggression. 224 See Kreß 2021a, para 37. See also Akande and Shah 2010, p. 843. 225 Cassese et al. 2013, p. 247. 226 For this view, see Kreß 2021a, paras 48, 62. The Special Rapporteur Escobar Hernández has also noticed this “polysemic use” in case law, see International Law Commission 2016b, para 150. For the indistinguishable use at that time, see the Commentary to Principle III in International Law Commission 1950, p. 375. See also Sect. 8.4.4. 227 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 444. 228 See Chap. 7, Sect. 7.7.4.1 for the “collectively instead of singly” reasoning on the question of universal jurisdiction. For this suggestion, see van Alebeek 2019, p. 509. For use of decisions of international courts as a subsidiary means for the determination of rules of customary international law, see Draft Conclusion 13(1) in International Law Commission 2018a. 229 See, e.g., Tladi 2019, p. 182. Several members of the International Law Commission maintained that “the lack of immunity before international criminal tribunals did not entail the non-application of immunity in domestic courts”. The Commission also refers to the practice of international tribunals but leaves out the practice of international criminal tribunals to assess the inapplicability of functional immunity to crimes under international law. See International Law Commission 2017b, p. 169, 180, fn. 764. 223

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domestic courts. There, Nuremberg is a central part of the customary international law assessment.230 The claim made in the judgment and in Article 7 of the Charter of the International Military Tribunal was soon endorsed by the newly established UN General Assembly. Resolution 95(I) unanimously affirmed, on behalf of the international community, “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal”.231 The omission of the resolution from specifying these principles, combined with the mandate given to a separate committee to “formulate” them, raises doubts about the quality of the endorsement.232 Unlike the principle of universal jurisdiction, however, the related principles of the irrelevance of official position and of the inapplicability of functional immunity made it into the list of the later formulated Nuremberg Principles of the International Law Commission. Reminiscent of Article 7 of the IMT Charter, Principle III states: “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.”233 Due to the express language of the Charter and the judgment, the irrelevance of official position and the inapplicability of immunity for State officials were clearly part of “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal”. The blanket affirmation of the UN General Assembly can thus be perceived as an endorsement of this core of the Nuremberg legacy by the international community. This was followed by the judgment in 1948 against Japanese leaders for the crime of aggressive war. In this judgment, the International Military Tribunal for the Far East (IMTFE) expressed “its unqualified adherence” to the claim made by the International Military Tribunal at Nuremberg that the “principle of international law which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by International Law”.234 The irrelevance of having acted in an official capacity was also stipulated in Article 6 of the IMTFE Charter.235 This restatement in the IMTFE Charter and the Tribunal’s expression of “unqualified adherence” to the Nuremberg paradigm of the absence of

230

The practice of the International Military Tribunal is part of the assessment of the applicability of functional immunity vis-à-vis domestic courts as conducted by Akande and Shah 2010, p. 840; Gaeta 2002, p. 981; Kreicker 2017, p. 682; Orentlicher 2011, pp. 204 et seq. 231 See UN General Assembly 1946, para 3. 232 Sellars 2013, p. 173. 233 See International Law Commission 1950. 234 IMTFE, Judgment, 12 November 1948, in Pritchard and Zaide 1981, p. 48, 439. 235 See Charter of the International Military Tribunal for the Far East, Directive of Douglas MacArthur, 19 January 1946 (IMTFE Charter), Article 6: “Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

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functional immunity were made irrespective of the effect of Japan’s unconditional surrender on immunities.236 This allows the conclusion that the Nuremberg claim of the inapplicability of functional immunity with respect to the crime of aggression had received sufficient immediate endorsement.237 It could crystallize into a rule of customary international law. It is irrelevant that further endorsement in the aftermath of World War II was not related to the crime of aggression.238 This view is shared by Lord Millett in the Pinochet case. He contends that after the unanimous affirmation of the principles of the Charter and the judgment of the International Military Tribunal by Resolution 95(I) of the UN General Assembly, “it was no longer possible to deny that individuals could be held criminally responsible for war crimes and crimes against peace and were not protected by State immunity from the jurisdiction of national courts”.239 Perceiving Nuremberg as a “Grotian Moment”,240 supports the formation of this rule under customary international law in a short period of time and with limited State practice. According to this rule, functional immunity is inapplicable in all, including domestic aggression proceedings. The consequence of perceiving Nuremberg and its aftermath as the moment where this rule crystallized into customary law, is that other instances of State practice that followed can be as inconsistent as they please. Only general practice accepted as law which supports the applicability of functional immunity to the crime of aggression in domestic trials could then rebut the Nuremberg paradigm. Those skeptical of the relevance of the Nuremberg precedent may claim, however that the inapplicability of functional immunity cannot generally be assumed for all aggression proceedings. Drawing conclusions from Nuremberg for any criminal proceedings, even conducted by domestic courts, is a generalization. Generalizing the inapplicability of functional immunities to all aggression proceedings shares the relative uncertainty of any induction.241 Induction is a process of going from the

236

Unconditional Surrender of Japan 1945 (supplement). For the assumption that the surrender of Japan allowed the Allied Powers to remove any immunity attaching to the official capacity, see Pedretti 2015, p. 235. 237 See UN General Assembly 1946, para 3; IMTFE, Judgment, 12 November 1948, in Pritchard and Zaide 1981, p. 48, 439; IMTFE Charter, Article 6; Principle III of International Law Commission 1950 as well as the domestic criminal trials conducted against German and Japanese aggressors as discussed in Sect. 8.4.5.3 below. 238 Such as the adoption of Article IV of the Genocide Convention in 1948 and Article III of the Apartheid Convention in 1973. For an overview of the endorsements, see Gaeta 2002, p. 981. 239 For the opinion of Lord Millett, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 272. 240 See Chap. 7, Sect. 7.7.3.3. A “Grotian moment” benefits from the “accelerating agent” of transformative times. Transformative times can involve, for example, “sentiments of moral outrage regarding crimes committed in conflicts”, see Scharf 2013, pp. 61 et seq. and Scharf 2019, p. 595 who refers to the contribution by Treves 2006, para 24. 241 Bleckmann 1977, p. 505. For a detailed discussion of the (un-)certainty of inductive reasoning, see Bleckmann 1995, pp. 554 et seq.

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specific to the general.242 The inapplicability of functional immunities in aggression proceedings, irrespective of the domestic or international nature of the court, might fail to identify the core of the customary rule that crystallized after Nuremberg. This is why practice by domestic courts, domestic legislatures and domestic governments helps to affirm the validity of the claim first made in Nuremberg for aggression proceedings at the domestic level.

8.4.5.3

Aggression-Specific Practice of Domestic Courts

Aggression-specific judicial practice stems from aggression trials conducted against former German or Japanese officials by Chinese,243 Soviet,244 Polish245 and American246 courts. More recent practice is generated by Ukrainian courts regarding the Russian-Ukrainian conflict. The aggression-specific judicial State practice is relevant for the present study, regardless of whether immunities were invoked by the State of the official and specifically denied by the forum State in these proceedings.247 Given that the adjudicating State considers ex officio immunities irrespective of their invocation,248 conducting domestic aggression trials already suggests that there was no conflicting functional immunity. Aggression-specific judicial practice in favor of the inapplicability of functional immunity stems from the Nanjing Tribunal.249 This was one of ten Chinese military tribunals after World War II,250 where the Japanese Generals and Governors of Hong 242

Talmon 2015, p. 420. Such as the trials against Sakai, Isogai, Tani and Tanka. 244 Such as the trials against the Wehrmacht Generals. There is little access to material in English. But see the summary in Ginsburgs 2000. The legal basis of the proceedings was mostly a Soviet decree of 19 April 1943, in other scenarios the Allied Control Council Law No. 10 of 20 December 1945. Ginsburgs 2000, pp. 109 et seq. 245 Such as the trial against Greiser. 246 Such as the follow-up trials with crime of aggression charges before the US Military Tribunals in the I.G. Farben case, the Krupp et al. case, the von Weizäcker et al case and the von Leeb et al case. However, the relevance of these cases can be questioned when considering immunities, since the tribunals have been established by occupying powers that had the supreme authority over Germany, see Kreicker 2007a, p. 194. 247 See also Kreicker 2017, pp. 682 et seq.; Kreß 2021a, para 61; Pedretti 2015, p. 188. For a contrary view, see Wuerth 2012, pp. 745 et seq. whereby the mere exercise of jurisdiction by the forum State is not State practice with respect to immunity. 248 In detail, see Kreicker 2017, p. 683; Kreß 2021a, para 61. See also Ascensio and Bonafè 2018, p. 831 See also German Federal Court of Justice, Judgment, 28 January 2021, 3 StR 564/19. For a contrary view, see International Law Commission 2011, paras 17 et seq.; Wuerth 2012, pp. 745 et seq. 249 On the legal basis of the Nanjing Tribunal and its recognition by the Japanese government, see also Liu 2016, pp. 119 et seq. 250 See Annex I in Liu 2016, p. 151. It mainly adjudicated crimes committed during the Nanjing Massacre. On the Nanjing Massacre, see Fogel 2002. 243

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Kong Sakai and Isogai, as well as General Tani, were charged with participating in a war of aggression.251 The relevance of the Chinese trials may be denied ab initio by interpreting the Japanese surrender to the Allied Forces,252 which includes China, as a waiver of immunities.253 However, even the IMTFE Charter dealt with the closely related question of the irrelevance of official position, in spite of the previous surrender of Japan.254 The fact that the Nanjing Tribunal did not consider the former position of the defendants in the Japanese regime as a bar to adjudicative jurisdiction suggests its conviction that functional immunity does not apply in aggression trials.255 This flows from the general assumption that States intend to act in compliance with international law.256 Additional judicial practice stems from the Supreme National Tribunal of Poland which found Gauleiter of the Warthegau Greiser guilty of, inter alia, preparing an aggressive war on Poland and for putting into effect the first phase of that aggression.257 Formally, Greiser used the defense of “acts of State”.258 However, the reasoning was similar to the one of functional immunity. His defense counsel submitted that “the acts committed by the accused were acts of State for which he could only be responsible before a court of his own State and not of another State, as in the latter event this would be contrary to international law.”259 The Tribunal, however, disregarded this plea and did not express any opinion on the point. Given that Poland was not a country Germany surrendered to, the discussion about consent from Germany is obsolete. The exercise of jurisdiction by the Polish court based on a Polish decree260 suggests that there is no prohibitive rule, such as functional immunity under international law, for foreign adjudicative jurisdiction over the crime of aggression.261 Other trials against German aggressors were held before the US Military Tribunals in Nuremberg.262 They were governed by Control Council Law No. 10, enacted by 251

Isogai was ultimately acquitted of war of aggression. On the Sakai and Isogai trial, see Zhang 2016, pp. 193 et seq. On the Sakai trial, see Clark 2013, pp. 387 et seq. On the Tani trial, see Liu 2016, pp. 113 et seq. 252 See Unconditional Surrender of Japan, AJIL. 253 In that regard Kreicker 2007a, p. 200; O’Keefe 2015b, para 10.72; Woetzel 1960, p. 71, fn. 41. 254 See IMTFE Charter, Article 6. 255 In the same vein, Pedretti 2015, pp. 79 et seq. 256 See Bleckmann 1995, p. 523. 257 By violating the Statute of the Free City of Danzig and of the rights accorded to Poland in this territory. See United Nations War Crimes Commission 1949, p. 77. 258 See United Nations War Crimes Commission 1949, p. 117. 259 Ibid. 260 The Polish decree of 22 January 1946 aimed to operationalize the Moscow Declaration that provided that war criminals “will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries”. For a detailed account of the legal basis, see United Nations War Crimes Commission 1948, Annex, pp. 82 et seq. See also Drumbl 2013, pp. 417 et seq. 261 Similarly, Strapatsas 2010, p. 454. 262 For a full account of the proceedings of the US Military Tribunals, see Heller 2011.

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the Allied Control Council to establish “a uniform legal basis in Germany for the prosecution of war criminals”.263 It stated in Article II(4)(a): “The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.” Although this provision linguistically covers the irrelevance of official position, and not immunities, it seems to be almost ahistorical to make a firm distinction between the concepts.264 In addition to this legal basis of the Tribunals, their practice suggests the inapplicability of functional immunity. In the Ministries case, for example, the defense of immunity was explicitly rejected with respect to the crime of aggressive war: “To permit such immunity is to shroud international law in a mist of unreality. We reject it and hold that those who plan, prepare, initiate, and wage aggressive wars and invasions, and those who knowingly, consciously, and responsibly participate therein violate international law and may be tried, convicted, and punished for their acts.”265

In the High Command case, which also dealt with charges for the crime against peace, the Tribunal recited the passage of the International Military Tribunal claiming the inapplicability of immunities and irrelevance whether the accused acted in an official capacity. It considered that “this reasoning applies also to Control Council Law No. 10” and perceived the IMT Charter as well as the Control Council Law No. 10 as “the expression of international law existing at the time”.266 The controversial legal character of the US Military Tribunals may allow to challenge the relevance of the follow-up trials for the inapplicability of functional immunity before domestic criminal courts.267 O’Keefe, for example, assumes that these proceedings could not implicate functional immunity “since the four Allied powers declared themselves to be exercising the sovereign authority of the subjugated German state”, which was not barred from trying its own former officials.268 The majority opinion, however, seems to be that they were “US military tribunals”.269

263

See Preamble. For this view, see Kreß 2021a, paras 48, 62. For the historically synonymous use of these concepts, see Sect. 8.4.4 with further references. 265 See the Ministries case or the so-called “Wilhelmstraßenprozess”, US Military Tribunal Nuremberg, The United States of America vs. Ernst von Weizäcker et al., Judgment, 11 April 1949, in Allied Control Council No. 10 1949a, p. 321. 266 See US Military Tribunal Nuremberg, High Command case (The United States of America vs. Wilhelm von Leeb et al.), Judgment, 27 October 1948, in Allied Control Council No. 10 1949b, pp. 474 et seq. The defendants were ultimately not convicted for crimes against peace due to their lack of fulfilling the leadership clause. This was not due to the applicability of functional immunity. See Ibid., p. 488. 267 On the legal nature of the Tribunals, see Dahm 1956, p. 18; Heller 2011, pp. 107 et seq.; Jescheck 1952, pp. 288 et seq. 268 O’Keefe 2015b, para 10.72. 269 Werle and Jeßberger 2020, para 40. 264

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Moreover, the excerpt from the judgments above demonstrates that functional immunities were not rejected in reliance of the character of the tribunals.270 The exercise of adjudicative jurisdiction on the basis of the Control Council Law No. 10, including Article II(4)(a), suggests that the inapplicability of functional immunity extends to domestic aggression proceedings. A more recent example of domestic aggression trials are the proceedings against the former military servicemen Alexandrov and Yerofeyev of the Russian armed forces before a Ukrainian Court in 2016.271 They were charged with aggression for their participation in hostilities in Eastern Ukraine.272 Immunity was only invoked in respect of war crimes.273 According to Sayapin, however, it is likely that the Court would have rejected functional immunity as it alluded to State responsibility held by Russia elsewhere in the judgment.274 Admittedly, the gros of practice from domestic courts that supports the inapplicability of functional immunity in domestic criminal proceedings was generated regarding genocide, crimes against humanity or war crimes. These are, inter alia,275 those conducted against former Nazi official Adolf Eichmann in Israel,276 the former head of the Gestapo in Lyon Klaus Barbie in France277 and the former SS commander Erich Priebke in Italy.278 Additional practice stems from the trials against the leader of the Surinamese military regime Desiré Bouterse in the Netherlands,279 several former Guatemalan officials in the Guatemala genocide cases in Spain,280 and former

270

Similarly, Lord Millett, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 272. 271 Sayapin 2018, p. 1097. 272 Although they were not high-ranking State officials, a conviction for aggression is possible under the second alternative in Article 437(2) of the Criminal Code of Ukraine which does not require aggressors to fulfill the leadership clause. 273 Sayapin 2018, p. 1097. There is no English translation of the judgment available. 274 Ibid. 275 For an overview of the case law, see also German Federal Court of Justice, Judgment, 29 January 2021, 3 StR 564/19; van Alebeek 2019, pp. 509 et seq. 276 District Court of Jerusalem 1968, pp. 45 et seq.; Supreme Court of Israel 1968, pp. 308 et seq. 277 French Cour de Cassation 1995. He was convicted for crimes against humanity. For details, see Doman 1989. 278 Supreme Court of Cassation (Italy), Priebke, Judgment, 16 November 1998. He was convicted for war crimes. For details, see Javers and Grammer 2006, pp. 413 et seq. 279 For charges of crimes against humanity and torture. See Court of Appeal of Amsterdam, Bouterse, Judgment, 20 November 2000, which found that the claim to immunity needed not be examined “because the commission of very grave criminal offences of this kind cannot be regarded as part of the official duties of a head of state”. Although the Supreme Court set aside the judgment, this was not due to immunities, see Supreme Court of the Netherlands, Judgment, 18 September 2001, LJN AB1471. For details, see Zegveld 2001. For a critique of the arguments raised by some ILC members against the Bouterse case, see Tladi 2019, p. 184. 280 Spanish Constitutional Tribunal, Guatemala Genocide case, Menchú Tumm and Others v. Two Guatemalan Government Officials and Six Members of the Guatemalan Military, Judgment, 26 September 2005, case no. 237/2005.

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members of the Assad regime in Germany and other European States for the systematic torture of people in Syrian detention facilities.281 If they referenced embodiments of the Nuremberg legacy, they could provide indirect support for the inapplicability of functional immunity to the crime of aggression.282 In the case against the former Nazi official Adolf Eichmann, for example, the Supreme Court of Israel recited the famous passage of the Nuremberg judgment, referred to Article 7 of the IMT Charter, as well as Principle III of the Nuremberg Principles.283 These are embodiments of the Nuremberg legacy, which emerged in response to the German campaign of aggressive wars. They were used in the Eichmann case to object considerations of the defense, which did not differ in any material respect from the plea of functional immunity.284

8.4.5.4

Legislative State Practice: Inference from Criminalization?

Practice at the domestic legislative level may add to instances that affirm the validity of the claim first made in Nuremberg about the inapplicability of functional immunity for domestic aggression proceedings. Domestic provisions on immunities, however, usually do not define the scope of immunities of foreign State officials.285 Instead, many domestic laws, such as

281

See Higher Regional Court of Koblenz, Judgment, 13 January 2022, 1 StE 9/19; Higher Regional Court of Koblenz, Judgment, 24 February 2021, 1 St 3/21. For details, see Aboueldahab and Langmack 2022. In Sweden, Norway and Austria, criminal complaints have been filed. For an overview, see www.ecchr.eu. Accessed 15 September 2022. Case law on the inapplicability of functional immunities also stems from a trial against a former Afghan State official, see German Federal Court of Justice, Judgment, 29 January 2021, 3 StR 564/19. For an analysis of this judgment, see Werle 2021. 282 See also Commentary to Draft Conclusion 13 in International Law Commission 2018a, para 1 whereby decisions of national courts may serve as practice and evidence of opinio iuris of the forum State but also serve a subsidiary means for the determination of rules of customary international law when they themselves examine the existence and content of such rules. 283 Supreme Court of Israel 1968, p. 311. The District Court of Jerusalem and the Supreme Court of Israel discussed the same considerations relevant for the applicability of functional immunity under the “act of State” doctrine, see District Court of Jerusalem 1968, pp. 45 et seq. See Lord Millett in House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 274. 284 See Foakes 2014, p. 150 whereby the Israeli court did not address the question of functional immunity, but it did not consider such immunity to an obstacle either. See also van Alebeek 2019, pp. 509 et seq. 285 See International Law Commission 2016b, para 42.

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the German,286 Austrian,287 Czech,288 Finnish289 and Estonian290 provisions, refer to applicable international law for the scope of immunities.291 These “reference provisions” are merely placeholders for applicable international law and do not shed light on the current state of customary international law.292 The inapplicability of functional immunity could be inferred from legislation which criminalizes aggression under domestic law and establishes jurisdiction over situations where the forum State is not the aggressor State.293 Given that acts performed in an official capacity seem to be an “essential ingredient”294 of the crime of aggression, functional immunities would typically arise in domestic aggression proceedings. Because of the transboundary nature of the State act of aggression, it suffices that States have criminalized aggression and relied on the most basic principle of criminal jurisdiction, namely territorial jurisdiction. This captures crimes committed on the territory of the forum State, which includes crimes of aggression committed by officials of foreign States. The approximately 40 States295 that have opted for such, or even more expansive, implementations296 might have expressed their legal conviction that functional immunities do not apply. Otherwise, they would 286

See Article 25 of the German Constitution which generally declares general rules of international law directly applicable. As well as Section 20 (2) of the German Courts Constitution Act (Gerichtsverfassungsgesetz) which contains a specific provision on immunities of persons other than members of diplomatic missions and consular post that refers to general rules of international law, international agreements and other legislation. See also Kreicker 2007a, pp. 43 et seq. 287 Article 9 of the Austrian Federal Constitutional Law refers to customary international law by providing that the “generally recognized rules of international law are an integral part of Austrian federal law”. 288 Section 10 of the Czech Code of Criminal Procedure incorporates by reference the understanding of immunities in accordance with international law. 289 Chapter 1, Section 15 of the Finnish Penal Code provides that the restrictions based on generally recognized rules of international law also apply to the scope of application of Finnish law. 290 According to Article 3 of the Estonian Constitution, generally recognized principles and rules of international law are an inseparable part of the Estonian legal system. According to Section 2 of the Code of Criminal Procedure, the sources of criminal procedural law are the Constitution of the Republic of Estonia, the generally recognized principles and provisions of international law, and international agreements binding on Estonia. 291 See International Law Commission 2016b, paras 42 et seq. For further examples, see Pedretti 2015, pp. 110 et seq. 292 See International Law Commission 2016b, para 43. At least if available travaux préparatoires of domestic implementations of the crime of aggression into domestic law do not address the question of immunities. 293 For the position that criminal codes incorporating the crime of aggression “constitute State practice suggesting that material immunity does not necessarily apply to the crime of aggression”, see Ruys 2017, p. 32. 294 See Crawford 2013, p. 667 who lists torture and the crime of aggression as those crimes that specifically require as an element of the crime that the person was acting in his or her official capacity. See also Introduction in van der Wilt et al. 2009, p. 13 who argues that the systemic nature of aggression is particularly clear. 295 Reisinger Coracini 2017, p. 1038. 296 See Chap. 7.

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have willingly accepted that the scope of application of their enacted legislation would be dramatically reduced by domestic courts in a second step. No rational system, it could be argued, would make an effort to exercise prescriptive jurisdiction capturing officials of foreign States, if these officials were then exempt from adjudicative jurisdiction. This inference is inspired by the reasoning given in the House of Lords’ Pinochet case297 to reject the plea of functional immunity for torture. It is based on the assumption that States, including the State of the official, established a “system of criminal justice”,298 which criminalizes certain official acts and contains an obligation to exercise extraterritorial jurisdiction. This system was established by the Torture Convention. It contains a definition of torture which requires an “acting in an official capacity”299 and it obliges States to exercise extraterritorial jurisdiction.300 The Torture Convention lacks a provision on immunities. However, it would be redundant to require extraterritorial jurisdiction over torturers “acting in an official capacity” if functional immunity for those people was maintained.301 According to Lord Millett, “[n]o rational system of criminal justice can allow an immunity which is coextensive with the offence”.302 Therefore, the Torture Convention allows the inapplicability of functional immunity to be inferred. However, the inconsistency of the system established by States for the domestic prosecution of the crime of aggression would not be as prominent. The inconsistency is not caused by a single “system of criminal justice”, such as an international treaty like the Torture Convention. The inconsistency is caused by the combination of a unilateral act of a State, which criminalizes aggression under domestic law, and rules of customary international law, which were created by the “international legislature” on the exercise of jurisdiction and on immunities.303 Perhaps the approximately 40

297

See House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999. For a detailed analysis, see van Alebeek 2008, pp. 224 et seq. 298 Lord Millett in House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 277. 299 For the definition, see Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (1465 UNTS (1987), 112), Article 1. 300 See UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 5. 301 See House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, Lord Goff of Chieveley p. 213, Lord Browne-Wilkinson p. 205, Lord Saville of Newdigate p. 267. The reasoning is essentially based on the operation of the Convention. See International Law Commission 2008a, para 185; Caban 2016, pp. 316 et seq.; Gattini 2007, para 14; Kreß 2021a, para 73; Wuerth 2012, p. 768; van Alebeek 2019, p. 510. 302 Lord Millett, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 277. On this reasoning, see also Akande and Shah 2010, pp. 841 et seq.; Caban 2013, pp. 316 et seq.; Foakes 2014, pp. 152 et seq. 303 For a rejection of the Pinochet reasoning, see also McDougall 2021, pp. 388 et seq.

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States,304 which criminalized aggression under domestic law, were silently willing to accept customary limitations to the exercise of adjudicative jurisdiction. Perhaps they were willing to accept that prosecuting foreign aggressors would require a waiver of immunities.305 Inferring the inapplicability of functional immunity from their domestic criminalization of aggression would be conceivable if it was argued that the States implemented the rules of one single “system of criminal justice”, namely of customary international law. If customary international law defined aggression as an official act and obliged306 States to exercise extraterritorial jurisdiction, it could not simultaneously provide functional immunities. However, the uncertainty of this inference lowers the probative value of the legislative practice.

8.4.5.5

Verbal Acts Within International Organizations: Reactions to Draft Article 7 of the International Law Commission

Explicit statements on the inapplicability of functional immunity to domestic aggression proceedings were made by State representatives at the Sixth Committee of the UN General Assembly.307 As the primary forum for the consideration of legal questions, the Sixth Committee of the UN General Assembly offers the opportunity to discuss the work of its “subsidiary organ”308 , the International Law Commission. This includes Draft Article 7, which was adopted in 2017 by the Commission for its work on “Immunity of State Officials from Foreign Criminal Jurisdiction”.309 In 2017 and 2018, four States of the UN General Assembly openly welcomed the

304

Reisinger Coracini 2017, p. 1038. Lord Millett, however, insisted that such an explanation of the remaining possibility to apply the criminal offense was “entirely inconsistent with the aims and object of the Convention” as “other states were to be placed under an obligation to take action precisely because the offending state could not be relied upon to do so”, see Lord Millett, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3), Judgment, 24 March 1999, p. 277. 306 On the customary obligation to criminalize aggression, see Chap. 2, Sect. 2.5. 307 Verbal acts of States are sometimes categorized as expression of opinio iuris, sometimes as State practice, see ICJ, Germany v. Italy, para 55: “State practice of particular significance is to be found in … the statements made by States, first in the course of the extensive study of the subject by the International Law Commission.” See also O. Dörr, in Epping and Heintschel von Heinegg 2018, §19 para 17 on the overlap between state practice and opinio iuris; but see Thirlway 2019, p. 92, who states that verbal acts are merely an expression of opinio iuris. 308 Wood, The Statute of the International Law Commission: https://legal.un.org/avl/ha/silc/silc. html. Accessed 15 September 2022. 309 See https://legal.un.org/ilc/guide/4_2.shtml. Accessed 15 September 2022. 305

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exclusion of the crime of aggression from the list of Draft Article 7.310 The exclusion was criticized by six States.311

8.4.5.6

Treaty and Practice of International Tribunals

It is doubtful whether provisions in Statutes of international criminal tribunals can be perceived as a general statement on the current state of customary international law applicable in domestic criminal proceedings.312 There are provisions on the irrelevance of official position or the inapplicability of functional immunity in many Statutes of international criminal tribunals.313 Apart from the ICC Statute, however, these Statutes do not contain the crime of aggression. Some international criminal tribunals have explicitly extended the claimed inapplicability of functional immunities to proceedings before domestic courts.314 Most famously, the International Criminal Tribunal for the Former Yugoslavia stated in the Blaški´c case. With respect to “the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide”, it found that “those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity”.315 As it is limited to war crimes, crimes against humanity and genocide, the statement does not provide authority for an aggression-specific customary rule.

310

Namely Belarus, the Czech Republic, Hungary and Mexico. See International Law Commission 2018b, para 16, fn. 47. 311 Namely Estonia, Portugal, Slovenia, Ukraine, Germany and Nicaragua. The latter two are not mentioned in International Law Commission 2018b, para 16, fn. 47. But see Germany 2017: “The remaining list of crimes in respect of which immunity ratione materiae shall not apply in the present draft article seems arbitrary. On the one hand, it omits the ‘crime of aggression’ even though it is one of the crimes covered by the Rome Statute.” Nicaragua 2017: “[t]he list of international crimes in draft article 7, to which immunity ratione materiae is not applicable, leaves out the crime of aggression. The reasons given for leaving out the most heinous crime against a people have lacked a legal basis.”[Translated from Spanish]. 312 See also Orentlicher 2011, p. 207. On the question whether the inapplicability of functional immunity before international criminal tribunals has a bearing before domestic courts, see International Law Commission 2016b, paras 156 et seq. 313 See ICC Statute, Article 27; ICTY Statute, Article 7(4); ICTR Statute, Article 6(4); SCSL Statute, Article 6(4); STL Statute, Article 3(3). 314 See International Law Commission 2016b, para 108. See ICC (AC), Al Bashir (Jordan), Judgment, 6 May 2019, para 116 which does not extend the inapplicability of Head of State immunity to the proceedings before domestic courts but rather speaks of a “fundamentally different nature of an international court as opposed to a domestic court exercising jurisdiction over a Head of State”. 315 See ICTY (AC), Blaški´ c, Judgment, 29 October 1997, para 41.

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Academic Literature as a Subsidiary Means

Academic literature, which serves as a subsidiary means of ascertaining rules of customary international law,316 offers a heterogenous picture. It does not necessarily help to guide the discussion of the identified State practice. It appears common in literature to leave discussion with a general statement that functional immunity does not apply to “crimes under international law”.317 This may be combined with a non-exhaustive list of such crimes,318 which is neither explicitly affirmative, nor dismissive, of the aggression-specific question of functional immunities. There are a few scholars who even reject the general inapplicability of functional immunities to crimes under international law, mostly due to the lack of sufficient State practice.319 This skepticism is shared by some members of the International Law Commission.320 The International Law Commission has taken an explicit stance against including the crime of aggression in the list of crimes to which functional immunities does not apply.321 This is a dramatic shift in position. After the Nuremberg judgment, the crime of aggression was still included in the general statement on the inapplicability of functional immunity in the 1950 Nuremberg Principles and of the 1954 Draft Code of Offenses.322 The shift to a more differentiated approach started with the Commission’s 1996 Draft Code of Crimes. Article 7 still acknowledged the irrelevance of official position and functional immunities for all “crimes against peace and security of mankind”.323 It did so in reference to the typical legal authorities establishing or affirming the Nuremberg legacy.324 Article 8, however, confers the adjudication of 316

See International Law Commission 2018a, p. Draft Conclusion 14. See Article 13(2) in Institut de Droit International 2001. See also Ambos 2021, pp. 533 et seq.; Cassese et al. 2013, pp. 241 et seq.; Cryer et al. 2019, pp. 514 et seq.; as well as immunity-specific literature, such as Akande and Shah 2010, pp. 839 et seq.; Ascensio and Bonafè 2018, p. 849; Horsthemke 2019, p. 147; Kreicker 2007a, p. 219; Pedretti 2015, p. 191; van Alebeek 2008, p. 241; van Alebeek 2019, p. 521. 318 See Article III(1) in Institut de Droit International 2009 whereby no immunity other than personal immunity applies with regard to “international crimes”, which are specified in Article I as “serious crimes under international law such as genocide, crimes against humanity, torture and war crimes, as reflected in relevant treaties and the statutes and jurisprudence of international courts and tribunals.” 319 See, for example, the contributions by Murphy 2018; O’Keefe 2015a, p. 167. 320 See, e.g., the statements made by Kolodkin, Murphy, Wood and Huang in International Law Commission 2017a, pp. 9 et seq. 321 See Draft Article 7(1) in International Law Commission 2017b, pp. 176 et seq. The recent debate of the International Law Commission is described in textbooks without necessarily taking a stance on the exclusion of the crime of aggression, see Cryer et al. 2019, p. 516; Stahn 2019, p. 253. 322 See Principle III in International Law Commission 1950; see Article 3 in International Law Commission 1951. 323 See Commentary to Draft Article 7 in International Law Commission 1996, paras 2 et seq. 324 See Commentary to Draft Article 7 in International Law Commission 1996, paras 2 et seq. which refers to the jurisprudence of the International Military Tribunal, “the Charter of the Nürnberg Tribunal, including the Charter of the Tokyo Tribunal (Article 6), Control Council Law No. 10 (Article 4) and, more recently, the statute of the International Tribunal for the Former Yugoslavia 317

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the crime of aggression primarily on an international criminal court and, exceptionally, the courts of the aggressor State.325 The limitation of domestic jurisdiction to the aggressor State was based on the par in parem non habet imperium principle.326 The 1996 Draft Code of Crimes was used by the International Law Commission to justify its position in 2017. It was used to explain why the crime of aggression was omitted in Draft Article 7, which declared functional immunity inapplicable to foreign criminal jurisdiction.327 This reasoning was criticized in literature,328 including by Kreß.329 However, he comes to a similar conclusion based on a deductive reasoning.330 While he is generally of the view that functional immunity does not apply to “crimes under international law”,331 he wonders whether this logically includes aggression proceedings before domestic criminal courts. He wonders whether “the inapplicability of the [customary] rule of functional immunity remains confined to proceedings before (certain) international criminal courts”.332 The dismissive literature contrasts with positions, like the Princeton Principles,333 that explicitly affirm the inapplicability of functional immunity with respect to domestic aggression proceedings.334 Wrange, for example, explains this inapplicability by the fact that “much of the authority that supports the exceptions from substantive immunity, including Nuremberg and its

(Article 7) and the statute of the International Tribunal for Rwanda (Article 6). The absence of such a defence was also recognized by the Commission in the Nurnberg Principles (Principle III) and the 1954 draft Code (Article 3).” 325 See Draft Article 8 and its commentary in International Law Commission 1996. 326 Ibid. 327 See Draft Article 7(1) in International Law Commission 2017b, pp. 176 et seq. 328 Criticism was raised by Ascensio and Bonafè 2018, p. 845; Clark forthcoming; Kittichaisaree 2018, p. 104; Ruys 2017, p. 32; Tladi 2019, p. 180, fn. 88. 329 Kreß 2021a, para 49 (“as cursory as weak”). 330 Which will be discussed in Sect. 8.4.6.2. 331 Particularly implied by the recognition of individual criminal responsibility for these crimes under customary international law, but also due to the general practice accepted as law that came into existence before 1990 in favor of the inapplicability of functional immunity and has not been changed by the recent controversies, see Kreß 2021a, para 31. 332 Kreß 2021a, para 37. 333 Principle 5 of the Princeton Principles rejects functional immunity, or what the Commentary calls “substantive immunity”, with respect to “serious crimes under international law”, meaning that the official status shall not relieve persons from criminal responsibility. Principle 2(1) clarifies that “crimes against peace” fall under the category of “serious crimes under international law”. See the Commentary in Macedo 2004, pp. 48 et seq. 334 The approach of these scholars is either to claim the inapplicability of functional immunity to the crime of aggression on the basis of State practice generated for all four crimes under international law, or to emphasize that much of the authority from the aftermath of World War II in support of the inapplicability was generated specifically with respect to the crime of aggression or to engage in a rather deductive reasoning. See Kreicker 2017, pp. 683 et seq.; Ruys 2017, pp. 31 et seq.; Wrange 2017, pp. 722 et seq.

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confirmation by the UN General Assembly and the International Law Commission, actually also applied specifically to crimes against peace”.335

8.4.5.8

Conclusion to the Inductive Approach

It can be concluded that functional immunity is inapplicable vis-à-vis domestic criminal courts. This is the case if particular weight is placed on the practice generated and endorsed in the aftermath of World War II. The lack of relevant State practice after World War I changed with the trial of the International Military Tribunal after World War II. Former officials of Nazi Germany were mainly charged with the crime of aggressive war. When claiming that functional immunity had no relevance, the Tribunal relied on the foundational logic of international criminal law. It did not emphasize its international character to reject immunities. This is why the claimed inapplicability of functional immunity also extends to domestic criminal proceedings. The Tribunal’s rejection of functional immunity and the IMT Charter’s confirmation of the irrelevance of official position in Article 7 were soon endorsed by the UN General Assembly in Resolution 95(I). This was followed by an endorsement by the International Law Commission in Principle III of the formulated “Nuremberg Principles”, by Article 6 of the IMTFE Charter and by the International Military Tribunal for the Far East in its “unqualified adherence” to the Nuremberg paradigm. Due to these numerous endorsements of the generally phrased Nuremberg claim, it can be assumed, that a rule crystallized into customary international law. This rule renders functional immunities inapplicable in international and domestic aggression proceedings alike. Perceiving Nuremberg as a “Grotian moment”, supports this assumption. The moderate number of supportive or dismissive aggressionspecific practice at the domestic level is immaterial. Only general practice accepted as law against the inapplicability of functional immunity in domestic aggression proceedings could change the customary rule that crystallized in the aftermath of Nuremberg. Those who question the stretch from the general Nuremberg claim to domestic criminal proceedings336 will not find enough affirmative aggression-specific practice at the domestic judicial, legislative and executive level. There is some judicial practice in favor of the inapplicability of functional immunity. It stems from aggression trials conducted against former German or Japanese officials by Chinese, Soviet, Polish and American courts in the aftermath of Nuremberg, as well as from the recent trial of servicemen of the Russian military forces by Ukrainian courts. The gros of the practice of domestic courts that supports the inapplicability of functional immunity, however, has been generated with respect to genocide, crimes against 335

Wrange 2017, p. 723. As States are not directly facing each other in the vertical level to an international tribunal, the inapplicability of functional immunity vis-à-vis domestic courts may require a separate affirmation. See Ambos 2021, pp. 541 et seq.

336

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humanity or war crimes. The stretch from these instances to the inapplicability of functional immunities in aggression proceedings cannot be criticized for disregarding the differences between domestic and international criminal courts. However, it can be criticized for the lack of being crime-specific. Legislative practice only exists in the form of the criminalization of aggression in approximately 40 States.337 The domestic criminalization is combined with the establishment of (at least) territorial jurisdiction, but explicit provisions on the inapplicability of functional immunity are lacking. There is inconsistent practice in the form of verbal acts by States on the non-inclusion by the International Law Commission of the crime of aggression in Draft Article 7. If “hard State practice” at the domestic level is insufficient, however, skeptics of the Nuremberg paradigm can rely on deductive reasoning in a complementary fashion, to “replace or lower the standard of inductive evidence”.338

8.4.6 Deductive Approach: Principle-Based Reasoning As elaborated in Chap. 7, the determination of customary international law is not limited to a purely inductive approach, which distills a general rule from specific State practice.339 Proponents of the formerly called “modern custom” have advocated for the inclusion of more deductive or “principle-based reasoning” (prinzipiengeleitete Argumentation). This has recently been acknowledged by the International Law Commission. The establishment of customary international law based on general practice accepted as law “does not preclude a measure of deduction, as an aid, to be employed with caution, in the application of the two-element approach”.340 Different principle-based reasoning could suggest that functional immunity is inapplicable to the crime of aggression in domestic criminal proceedings. The inapplicability of functional immunity is typically justified by the gravity of the crimes, their close connection to fundamental values of the international community, their nature as “crimes under international law”, on their basis on ius cogens or by means of a balancing exercise.341 There is much overlap between these reasonings.342

337

See Reisinger Coracini 2017, p. 1038. On the different functions of deductive reasoning, see Talmon 2015, p. 427, 442: “Deductive reasoning is not limited to identifying rules of customary international law but may also be used to confirm the results reached by induction, replace or lower the standard of inductive evidence or establish a burden of proof necessary for the inductive method to reach a result.” 339 See Chap. 7, Sect. 7.7.3.4. 340 See Commentary to Draft Conclusion 2, International Law Commission 2018a, para 5. 341 For an overview of the principle-based justifications of the inapplicability to crimes under international law, see Ambos 2021, pp. 533 et seq.; Caban 2016, pp. 314 et seq.; Fox and Webb 2015, pp. 573 et seq.; International Law Commission 2008a, paras 190 et seq.; International Law Commission 2016b, paras 190 et seq. 342 The gravity and the connection to fundamental values of the international community, for example, are somehow subsumed in the category of “crimes under international law” or ius cogens, 338

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The deductive reasonings based on ius cogens or on the nature of “crimes under international law” are the most common.

8.4.6.1

Reasoning Based on Ius Cogens

Rationalizing the inapplicability of functional immunity to certain crimes based on ius cogens343 is not uncontroversial.344 A respective draft conclusion proposed by the Special Rapporteur Tladi did not receive enough support within the International Law Commission.345 This draft conclusion provided that “[i]mmunity ratione materiae shall not apply to any offence prohibited by a peremptory norm of general international law (jus cogens)”346 As explained in Chap. 2, crimes under international law are based on ius cogens norms.347 Norms of ius cogens “reflect and protect fundamental values of the international community”348 and give rise to obligations erga omnes.349 The crime of aggression is based on the prohibition of aggression, which has the status of ius cogens350 and gives rise to an obligation erga omnes to abstain from aggression. The obligation to abstain from aggression is not only addressed to States. With the recognition of individual criminal responsibility for aggression, it is also addressed to individuals.351 As a consequence, States and individuals owe the obligation to abstain from aggression erga omnes, towards the international community as a whole. A normative justification for the inapplicability of functional immunity on a ius cogens basis tends to be developed from the effects of ius cogens accepted under

and taken into account in the balancing exercise. See Draft Conclusion 3 in International Law Commission 2019. 343 Bassiouni 1996, p. 63; Bianchi 1999, p. 265; Gaeta et al. 2020, p. 128; Orakhelashvili 2002, pp. 712 et seq.; Orakhelashvili 2007, pp. 963 et seq.; Orakhelashvili 2012, pp. 615 et seq. For additional literature, see International Law Commission 2008a, para 194, fn. 548. For an overview of case law, see International Law Commission 2018c, paras 125 et seq. 344 Ambos 2021, pp. 534 et seq.; Akande and Shah 2010, pp. 832 et seq.; Kreß 2021a, para 30. In general, the effects of ius cogens in the field of international criminal law are more controversial, see Crawford 2019, p. 582. See also Jennings and Watts 2008, p. 8; van Steenberghe 2011, p. 1092. 345 It has been replaced by a “without prejudice” clause. See Draft Conclusion 22 in International Law Commission 2019. 346 See Draft Conclusion 23(2) in International Law Commission 2018c. 347 See Chap. 2, Sect. 2.6.3. 348 Draft Conclusion 3 in International Law Commission 2019. Similarly, Evans 2018. See also Bassiouni 1996, p. 69. 349 See Draft Conclusion 17(1) in International Law Commission 2019. An obligation “erga omnes” means an obligation “towards everyone” and shall be contrasted to an obligation “inter partes”, between the parties. See also ICJ, Case Concerning the Barcelona Traction (Belgium v Spain), Judgment, 5 February 1970, ICJ Reports 1970, p. 3, para 33; Weatherall 2015, p. 351. 350 See Chap. 2, Sect. 2.6.3. 351 Similarly with respect to war crimes, Kreß 2000, pp. 112 et seq.

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international treaty law352 or under the law of State responsibility.353 The effet utile of ius cogens norms may also provide a normative justification. Under international treaty law, ius cogens norms have an overriding power vis-àvis the individual interests of the contracting States. Ius cogens renders conflicting treaties void.354 The “normative hierarchy”, whereby ius cogens prevails over other norms, could also invalidate functional immunity.355 If a crime violates ius cogens, the State’s sovereignty interest of respecting functional immunity would be overridden by the collective interest embodied in the ius cogens norm. Under the law of State responsibility, serious breaches of obligations arising from ius cogens norms trigger a special regime.356 This imposes particular obligations on all States.357 These include the obligation not to “recognize as lawful a situation created by a serious breach” of an obligation arising under a ius cogens norm and the obligation not to “render aid or assistance in maintaining that situation”.358 “Recognition” of the former obligation could be interpreted more broadly as an “evaluation of State conduct in face of facts which may relate to legal titles, liabilities or immunities”.359 Consequently, upholding immunity in criminal proceedings for crimes involving a serious breach of ius cogens would mean “recognizing the outcome of the breach”.360 Hence, the obligation of non-recognition would require domestic courts to deny functional immunity.361 Similar arguments are made regarding the obligation of non-assistance. A State which upholds immunities would render assistance in maintaining the situation created by the breach.362 352

See VCLT, Articles 53 and 64. See Article 41 in International Law Commission 2001. It was described as a “semi-deductive” approach by Foracelli to empirically prove that a certain ius cogens effect is produced in one legal context and to infer a different effect in another context, without any need to specifically test the effect thus inferred against State practice. For a critical account, see Focarelli 2008, pp. 446 et seq. 354 See VCLT, Article 53. In detail, see also Chap. 2, Sect. 2.6.4.1. 355 See, e.g., Bianchi 1999, p. 265 van Panhuys 1964, p. 1213. See also ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, dissenting opinion of Judge Al-Khasawneh, ICJ Reports 2002, p. 3, para 7 who makes this argument in relation to the immunity of an incumbent Minister of Foreign Affairs; Italy, Court of Cassation, Ferrini v. Federal Republic of Germany, Decision, 11 March 2004 which holds that the rules establishing international crimes, which have a “higher rank”, must prevail over the rules on State immunity from foreign jurisdiction. 356 Also called “aggravated State responsibility”, see Gaeta et al. 2020, pp. 270 et seq. 357 See Article 41 in International Law Commission 2001; Crawford 2013, pp. 381 et seq.; Gaeta et al. 2020, p. 269. 358 See Article 41(2) in International Law Commission 2001: “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.” 359 For such an understanding, see Brownlie 1983, p. 201; Crawford 2013, p. 381; Orakhelashvili 2007, pp. 963 et seq. 360 Orakhelashvili 2007, p. 967. 361 Ibid. See also Bianchi 2005, p. 247. 362 See Bianchi 2005, p. 247; de Sena and de Vittor 2005, p. 100 who refer to the reasoning given by the Italian Supreme Court in the Ferrini case. 353

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These arguments were dismissed by the International Court of Justice in the Jurisdictional Immunities case with respect to State immunity.363 Accordingly, procedural rules of State immunity are different from the substantive rules of ius cogens. This is why there can be no direct conflict like in international treaty law in which ius cogens prevails.364 The procedural nature of State immunity is also why it does “not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful”.365 Recognizing the immunity of a foreign State “does not amount to recognizing as lawful a situation created by the breach of a ius cogens rule, or rendering aid and assistance in maintaining that situation”.366 This rejection of the ius cogens reasoning by the International Court of Justice for State immunity in civil proceedings does not need to extend to functional immunity in criminal proceedings.367 However, the ruling of the International Court of Justice has often been the reason why scholars did not refer to ius cogens to justify the inapplicability of functional immunity.368 There is a proximity of State immunity and functional immunity. The risk to make parallel assumptions in case of a breach by States and by individuals may also explain the resistance towards an effet utile reasoning. Such reasoning is not necessarily dependent upon a direct conflict between functional immunities and ius cogens but aims to ensure the effective protection of the latter by attaching the greatest possible realization mechanisms to these norms.

8.4.6.2

Reasoning Based on the Nature of “Crimes Under International Law” and Extraterritorial Jurisdiction

The preferable principle-based reasoning for the inapplicability of functional immunities is to rely on the nature of “crimes under international law”. This reasoning is often additionally based on the recognition of a right to exercise extraterritorial or universal jurisdiction over these crimes.369 This combined reasoning is described as the “prevailing and most persuasive” one.370 Requiring for the inapplicability of functional immunity both a “crime under international law” and the recognition of extraterritorial or universal jurisdiction over this crime can be explained by the two-limb rationale of functional immunity. 363

See ICJ, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ, Judgment, 3 February 2012, para 93. 364 Ibid. 365 Ibid. 366 Ibid. 367 See International Law Commission 2018c, para 130. 368 Akande and Shah 2010, p. 834; Ambos 2021, pp. 534 et seq.; Fox and Webb 2015, p. 573; Kreicker 2017, p. 681; Kreß 2021a, para 30. 369 See, e.g., Akande and Shah 2010; Caban 2016, p. 317; Kreß 2021a, para 37; van Alebeek 2019, p. 509; Stahn 2019, p. 253. 370 Caban 2016, p. 315.

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This is advanced by van Alebeek and Kreß on the basis of the Blaškic judgment. To recall, functional immunity from foreign criminal jurisdiction is said to be based on first, the freedom of States to determine the mandate of their officials, and secondly, their exclusive jurisdiction to establish whether their officials acted within the bounds of their mandate, and hence whether they incurred personal responsibility.371 The concept of “crimes under international law” affects the first limb of the rationale of functional immunity, namely the freedom of States to determine the mandate of their officials.372 “Crimes under international law” are crimes that are defined by international law and which give rise to individual criminal responsibility directly under international law.373 It was a revolutionary idea to directly impose duties on individuals, without the need of any interposition of national law.374 Originally, the concept of “crimes under international law” was supposed to cover primarily the conduct of State officials.375 Hence, the revolutionary idea of crimes under international law meant that States were no longer free to determine the mandate of their officials within which they could act without incurring personal responsibility.376 The crime of aggression fulfills the first requirement for the inapplicability of functional immunity. Its formal status as a “crime under international law” has been confirmed by various international documents.377 It was described as the “supreme international crime” by the International Military Tribunal at Nuremberg.378 It can be claimed that the concept of individual criminal responsibility for violations of international law was primarily developed to cover the crime of aggression as the main charge against the German Nazi leaders. Unlike genocide, crimes against humanity and war crimes, the crime of aggression is a “crime under international law” for

371

See van Alebeek 2008, pp. 112 et seq.; van Alebeek 2019, pp. 498 et seq.; Kreß 2021a, paras 34 et seq.; ICTY (AC), Blaški´c, Judgment, 29 October 1997, para 41. 372 Van Alebeek 2019, p. 519; Kreß 2021a, para 37. 373 Ambos 2021, p. 95; Cassese et al. 2013, p. 3; Cryer 2008, p. 108; O’Keefe 2015b, paras 2.34 and 2.49; Werle and Jeßberger 2020, para 97. 374 See also Principle I in International Law Commission 1950: “Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.” See also the Commentary thereof, para 99: “The general rule underlying Principle I is that international law may impose duties on individuals directly without any interposition of internal law.” See also IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447: “[t]he essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state”. 375 See also Akande and Shah 2010, p. 843. 376 Van Alebeek 2019, p. 519; Kreß 2021a, para 37. See also Ascensio and Bonafè 2018, p. 834; Caban 2016, p. 315. 377 Principle VI of International Law Commission 1950; Article 2 of International Law Commission 1951; Article 16 of the International Law Commission 1996; Article 20(b) of the International Law Commission 1994; Article 5 of the ICC Statute. This was why the Sierra Leonean member Jalloh criticized the non-inclusion of the crime of aggression, see International Law Commission 2017a, p. 14. 378 See IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 421.

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which the official nature of the act is an “essential ingredient” of the offense.379 The official act is also what forms the basis for functional immunity. The contradiction between criminalizing conduct whilst providing functional immunity is thus particularly pronounced for the crime of aggression. The second limb of the rationale of functional immunity is affected if international law recognizes extraterritorial or universal jurisdiction over the crime.380 Then, the State of the official no longer has exclusive jurisdiction to assess whether its officials stayed within the mandate. Instead, there are States with concurrent jurisdiction. With respect to the crime of aggression, the views differ about whether it fulfills the additional condition to render functional immunity inapplicable. The Finnish member of the International Law Commission Lehto, for example, did not question that aggression is a crime under international law. However, she still agreed with its non-inclusion in the list of crimes to which functional immunity does not apply. She argued that it is not undisputedly a crime to which universal jurisdiction would apply.381 Kreß, in contrast, does not seem to require universal jurisdiction for the inapplicability of functional immunity but extraterritorial jurisdiction. He infers the right to exercise extraterritorial jurisdiction from the concept of “crimes under international law”.382 For the crime of aggression, he cautiously considers whether the right to extraterritorial jurisdiction should be limited to international criminal courts.383 He thus seems to question the inapplicability of functional immunities in domestic aggression proceedings. His logical inference, however, is not the only conceivable one. The second limb of functional immunity could be defeated at the domestic level by demonstrating that customary international law allows States to exercise extra territorial, or even universal, jurisdiction over the crime of aggression.384 As Chap. 7 379

Due to the underlying act of State as well as a person in a position of effective control or direction over the military or political action of a State. See ICC Statute, Article 8bis. On this point, see also Crawford 2013, p. 667; Reisinger Coracini and Wrange 2017, p. 312 et seq.; ICJ, Case Concerning the Arrest Warrant of 11 April 2000 (DR Congo v Belgium), Judgment, 14 February 2002, dissenting opinion of Judge van den Wyngaert, ICJ Reports 2002, p. 3, para 35. 380 Van Alebeek 2019, pp. 519 et seq. This seems to be the approach taken by Akande and Shah 2010, pp. 843 et seq. 381 International Law Commission 2017d, p. 11. Similarly, Caban 2016, p. 315. 382 If the adjudication should have remained a matter for the exclusive criminal jurisdiction of the State of the official, he argues, the recognition as a “crime under international law” would not have been required. “It would then rather have sufficed, [as it is often the case for treaty-based crimes] to introduce an international legal obligation incumbent upon States to criminalize the relevant conduct and to exercise their national jurisdiction over their State officials in case of an alleged violation”. See Kreß 2021a, para 37. 383 He assumes that the purpose underlying the introduction of the concept of individual criminal responsibility for aggression “might not be defeated by confining the extraterritorial jurisdiction over it to (certain) international criminal courts”. This is not the case for other crimes under international law, which are not only committed by a small group of persons. Due to the obvious “practical limitations” of any international court, States would have otherwise introduced the concept of “crimes under international law” in the knowledge of precluding the concept from acquiring “significant practical meaning”, see Kreß 2021a, para 37. 384 This is the approach taken by Akande and Shah 2010, pp. 843 et seq.

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showed, it is the very understanding of the fundamental principle of territorial jurisdiction that States are allowed to exercise “extraterritorial” jurisdiction over the transboundary crime of aggression.385 It includes crimes which are commenced abroad but completed in the territory of the forum State or vice versa. The courts of the aggressed State, one of the territorial States,386 are presumed to have the right to exercise adjudicative jurisdiction over the transboundary crime of aggression. Due to this right, they would not be barred by functional immunity.387 The right to exercise universal jurisdiction, in contrast, is more controversial. It depends on the weight given to the practice generated by the International Military Tribunal at Nuremberg and the integration of deductive reasoning. For those affirming the right to exercise universal jurisdiction over the crime of aggression, the second limb of functional immunity would be defeated for domestic criminal proceedings in third States. The right of third States denies the exclusive jurisdiction of aggressor States over their officials to attribute personal responsibility for acts committed in excess of the mandate. Those skeptical of the right to exercise universal jurisdiction over the crime of aggression, in contrast, could at least adopt an approach distinguishing between victim States and third States for the question of the inapplicability of functional immunity.388 They could accept that functional immunity is inapplicable in proceedings of the victim State due to its right to exercise territorial jurisdiction. Generally rejecting the inapplicability of functional immunity for the lack of a customary right to exercise universal jurisdiction, in contrast, would go beyond of what is necessary to respect the underlying two-limb rationale of functional immunity.389 Synchronizing the inapplicability of functional immunity with the extent to which permissive rules to exercise jurisdiction exist under international law ensures congruency between prescriptive and adjudicative jurisdiction. It would ensure that customary international law did not confer extraterritorial or universal jurisdiction in respect of the crime of aggression, and simultaneously left functional immunity intact. Functional immunities would render the conferment of such jurisdiction practically meaningless since crimes of aggression are typically committed by persons acting in an official capacity.390

385

See Chap. 7, Sect. 7.3. And can also rely on the protective principle. 387 It would suggest a double standard in the deductive explanation of the inapplicability of functional immunity for crimes under international law. It is inconsistent to generously assume a conflict with functional immunities in case of genocide, crimes against humanity and war crimes, which are often but not by definition committed by persons acting in official capacity, while being strict regarding whether the crime of aggression fulfills the second condition for the inapplicability of functional immunity. 388 Such an approach has been advocated by Akande 2010, p. 33 who accepts the inapplicability of functional immunity in the victim State of a crime of aggression. 389 But see Caban 2016, p. 315. 390 For a similar reasoning with respect to torture under the international treaty law, see House of Lords, Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet 386

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8 Legal Challenges for Foreign Adjudicative Jurisdiction

Conclusion to the Deductive Approach

Among deductive reasoning, the “crimes under international law” avenue is preferable to the ius cogens avenue. It is difficult to deny that the crime of aggression is based on ius cogens. Still, the main difficulty of the deductive ius cogens reasoning in the field of functional immunity is the potential spill-over effect on State immunity. The law of State immunity does not contain any exception or limitation in case of crimes based on ius cogens. The crux of ius cogens norms with a corresponding crime under international law is that they simultaneously give rise to obligations for States and individuals. Consistency in legal reasoning would require the inapplicability of State immunity if the justification of the inapplicability of functional immunity was inspired by parallel obligations from the law of State responsibility, such as the obligation of non-recognition and non-assistance. The “crimes under international law” avenue requires for the inapplicability of functional immunities a “crime under international law” as well as extraterritorial or universal jurisdiction over the crime in question. This avenue seems to reject functional immunities in aggression proceedings in victim States. Victim States can exercise jurisdiction at least based on the principle of territoriality, a principle that is indifferent to the nature of the crime. The second requirement of the “crimes under international law” avenue ensures coherency with Chap. 7. The permissive rules established in Chap. 7 would not only allow States to exercise prescriptive jurisdiction and create laws on the crime of aggression. Based on these established permissive rules, domestic courts can also exercise adjudicative jurisdiction without being surprised by a subsequent restriction through functional immunities. They can rely on the presumed congruency between adjudicative and prescriptive jurisdiction. The inapplicability of functional immunity could be assumed for aggression proceedings in third States if the right to exercise universal jurisdiction with respect to the crime of aggression was assumed. A possible basis for universal jurisdiction is provided by the practice of the International Military Tribunal at Nuremberg, the IMT Charter and the subsequent endorsement by the international community or additional deductive reasoning.

8.4.6.4

Conclusion: Inapplicability to the Crime of Aggression?

It is possible, albeit not uncontroversial, to assume the inapplicability of functional immunity in domestic aggression proceedings based on inductive as well as deductive reasoning. The inapplicability in criminal proceedings can be claimed inductively if weight is placed on the aggression-specific practice generated and endorsed in the aftermath of World War II. This practice does not explicitly limit the inapplicability of Ugarte (No. 3), Judgment, 24 March 1999, p. 205, 213, 267. See also Akande and Shah 2010, p. 841.

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functional immunity to international courts. Instead, it explains the inapplicability using the foundational logic of international criminal law. Unlike the customary right to exercise universal jurisdiction, the inapplicability of functional immunity and the irrelevance of official position are straightforward. They were explicitly stated by the International Military Tribunal and its Charter. They were part of the “Nuremberg Principles” of the International Law Commission, which were previously affirmed by the UN General Assembly in a blanket fashion. It is more difficult to challenge the immediate endorsement by the international community of the inapplicability of functional immunity than the right to exercise universal jurisdiction.391 Skeptics may argue that the general claim of the inapplicability of functional immunity made in Nuremberg was not affirmed by domestic courts, domestic legislation and domestic executive acts. They would refer to the limited affirmative State practice at the domestic level, such as the domestic aggression trials in response to World War II or the Russian-Ukrainian conflict or approximately 40 domestic legislative acts.392 They would also refer to some verbal acts of States in support of the inapplicability of functional immunity to the crime of aggression. Despite the limited affirmative State practice at the domestic level, the inapplicability of functional immunity in domestic aggression proceedings could still be claimed by the skeptics of the Nuremberg paradigm additionally using deductive reasoning, especially under the “crimes under international law” avenue. Under its most common variation, categorizing the crime of aggression as a “crime under international law” does not suffice to assume the inapplicability of functional immunity. The inapplicability also depends on the recognition of universal, or at least extraterritorial jurisdiction for the crime. This deductive reasoning may bring about a differentiation between proceedings in third States and directly affected States. It can be assumed that functional immunity is at least inapplicable before domestic courts of the victim State which has territorial jurisdiction over crimes of aggression. Those who agree with the findings of Chap. 7393 and affirm the right of States to exercise universal jurisdiction can also claim the inapplicability of functional immunity in aggression proceedings of third States.

8.5 The Monetary Gold Doctrine A prohibitive rule to the exercise of adjudicative jurisdiction without the consent of the aggressor State does not arise from the Monetary Gold doctrine developed by the International Court of Justice.

391

For the claimed right to exercise universal jurisdiction, see Chap. 7, Sect. 7.7. Reisinger Coracini 2017, p. 1038. 393 See Chap. 7, Sect. 7.7.6. 392

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8.5.1 The Origin of the Doctrine: Contentious Proceedings of the International Court of Justice This doctrine was developed by the International Court of Justice in connection with its own restricted jurisdiction in contentious proceedings.394 It ensures that the underlying principle of consent is not circumvented.395 It originates from the Monetary Gold case which was brought by Italy against France, the United Kingdom and the United States.396 Italy and the three respondents had a common agreement conferring jurisdiction upon the International Court of Justice. Nonetheless, the Court held that it could not decide the interstate dispute without the consent of Albania. This was because Albania’s legal interests “would not only be affected by the decision, but would form the very subject-matter of the decision”.397 This is the case whenever the determination on the legality of conduct of the third State is a prerequisite for deciding the case before the Court.398

8.5.2 Extension of the Doctrine to All International Tribunals? There have been attempts to apply the Monetary Gold doctrine beyond the jurisdiction of the International Court of Justice, to international courts and tribunals more generally.399 In the field of international criminal law, the Monetary Gold doctrine has been invoked regarding the jurisdiction of the International Criminal Court over officials of

394

See ICJ Statute, Articles 36 et seq. Thienel 2016, pp. 234 et seq. Similarly, Epping in Epping and Heintschel von Heinegg 2018, §59 mn. 54; Shaw 2021, p. 943. 396 ICJ, Case of the Monetary Gold Removed from Rome in 1943 (Italy v France et al.), Judgment, 15 June 1954 ICJ Reports 1954, p. 19. For a more detailed discussion of the factual background, see Aust 2011, pp. 298 et seq.; Crawford 2013, p. 656; Oliver 1955. 397 ICJ, Case of the Monetary Gold Removed from Rome in 1943 (Italy v France et al.), Judgment, 15 June 1954 ICJ Reports 1954, p. 19, paras 32 et seq. 398 For further subsequent case law, see Amerasinghe 2009, pp. 51 et seq.; Aust 2011, pp. 300 et seq.; Crawford 2013, pp. 658 et seq.; Pomson 2019, pp. 96 et seq.; Shaw 2021, p. 943; Thienel 2016, pp. 35 et seq.; Tomuschat 2012, pp. 648 et seq. 399 See ICC (PTC), Situation in Palestine, Decision, 5 February 2021, paras 58 et seq. referring to the observations of various participants of the proceedings which invoked this principle and admitting that this principle “has de facto been considered before the Permanent Court of Arbitration (‘PCA’) and the International Tribunal for the Law of the Sea (‘ITLOS’)”. See also Akande 2010, pp. 1 et seq.; Akande 2003, pp. 618 et seq. who points into the direction of applying the Monetary Gold doctrine (with exceptions) to domestic courts; Pomson 2019, pp. 88 et seq. 395

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non-States Parties400 and over the crime of aggression.401 The International Criminal Court, however, has rejected the applicability of the Monetary Gold doctrine in a situation involving nationals of non-States Parties, holding that it “cannot rule on inter-state disputes as it does not have jurisdiction over States, but exercises its jurisdiction solely over natural persons”.402

8.5.3 Extension to Domestic Aggression Proceedings? This situation did not involve the crime of aggression. Theoretically, one may still contend the extension of the Monetary Gold doctrine to aggression proceedings, including those at the domestic level. In a context unrelated to international criminal law, Crawford claimed that “the international law rule prohibiting adjudication against foreign States without their consent [Monetary Gold doctrine] may not apply directly to municipal courts [but] it has much force as an analogy, with respect to matters that it covers”.403 At first glance, the essence of the Monetary Gold doctrine fits aggression trials. The use of armed force of a State in manifest violation of the UN Charter is a necessary element of the crime of aggression.404 It is impossible to establish individual criminal responsibility of a foreign State leader for the crime of aggression without ruling on the legality of the conduct of that State.405 Due to the possible defense of the foreign State leader that their State has acted in self-defense under Article 51 of the UN Charter, assessing individual criminal responsibility for the crime of aggression would also require whether the conduct of the alleged victim State amounts to an “armed attack” to be determined.406 Hence, the conduct of both States can be part of the assessment when establishing criminal responsibility for the crime of aggression. Akande assumes that aggression trials

400

See, e.g., Akande 2003, pp. 635 et seq. Amicus Curiae Observations of Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond-Barak, Prof. Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker, ICC (PTC), Situation in Palestine, 16 March 2020, para 30. 401 See, in particular, Akande 2010, pp. 16 et seq.; McDougall 2021, p. 298, fn. 178 noting that the “Head of the UK Delegation, Chris Whomersley, referred to the principle on numerous occasions in Kampala, including in the Plenary debate”. For a skeptical view, see van den Herik and Stahn 2012, pp. 413 et seq.; Wrange 2017, pp. 712 et seq. 402 ICC (PTC), Situation in Palestine, Decision, 5 February 2021, para 59. 403 Namely in the context of foreign State transactions. See Crawford 1984, pp. 80 et seq. 404 See ICC Statute, Article 8bis. 405 Akande 2010, pp. 16 et seq. In the same vein but arguing with the par in parem non habet imperium principle, see Article 8 in International Law Commission 1996. 406 Akande 2010, p. 17.

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would be “practically no different to determining an inter-State dispute”.407 This brings aggression trials closer to the contentious proceedings in respect of which the Monetary Gold doctrine was originally developed. However, the very subject matter of a criminal trial is still the individual criminal responsibility of the person suspected of having committed a crime of aggression. This is irrespective of whether it takes place before an international or domestic court. Assuming the legal interest of the aggressor State to be central to criminal trials conflicts with their main purpose408 and the revolutionary idea of Nuremberg to hold individuals and not “abstract entities” responsible.409 It is doubtful whether it suffices for being the “very subject-matter” of the decision for the State act of aggression to be a necessary part, but not the outcome, of an assessment of individual criminal responsibility.410 This is particularly the case since the State act of aggression is ultimately a definitional reduction of individual acts that form the use of armed force by a State. Compared to decisions of the International Criminal Court, the factual impact of a decision of a single domestic criminal court is also supposed to be more limited. This makes it more difficult to assume a comparable situation to the Monetary Gold case. While the aggressor State would have a harder time to deny its act of aggression in the international arena after a conviction of its State leaders by the International Criminal Court,411 decisions of a domestic criminal court would face more circumspection.412 This is acknowledged in the ICC Statute under Article 17 and Article 20(3), whereby a previous conviction by a domestic court does not necessarily lead to the inadmissibility of the case before the International Criminal Court. A positive finding of a domestic court on an act of aggression is thus not comparable to the same finding of the International Criminal Court. An application to domestic criminal jurisdiction requires an extreme decontextualization of a doctrine that is inherently linked to the jurisdictional regime of the International Court of Justice – or at least with its nature as an international court. Unlike the jurisdiction of the International Court of Justice, the jurisdiction of domestic criminal courts of a State is not premised on consent. It is primarily based on a State’s own sovereignty.413 The International Court of Justice as a treaty-based institution has the

407

Ibid. The assessment of the conduct of the victim State would also be necessary if the aggressor claimed that the use of force was a “humanitarian intervention”, which would preclude their responsibility for a crime of aggression. 408 On the purposes of punishment, see Jeßberger and Geneuss 2020. 409 IMT, Judgment, 1 October 1946, in International Military Tribunal 1950, p. 447: “Crimes against International Law are committed by men not by abstract entities”, as the International Military Tribunal famously pronounced. See also Akande 2003, p. 636. 410 Similarly, Reisinger Coracini and Wrange 2017, p. 316 where the very subject matter of a criminal judgment is the verdict against an individual. 411 See also Akande 2010, p. 34; McDougall 2021, p. 299; van Schaack 2011, p. 582. 412 See Nollkaemper 2003, pp. 629 et seq. 413 Except for the derivative forms of jurisdiction, see Jeßberger 2011, pp. 265 et seq.

8.6 Conclusion

461

power that has been given to it by its creators. These creators have opted for jurisdiction in contentious proceedings based on consent,414 whose circumvention shall be prevented by the Monetary Gold doctrine.415 Describing the jurisdiction of domestic courts in criminal matters as consensual is not reflected in the domestic codes where the requirement of consent appears to be missing.416 Depending on the reading of the Lotus case, the exercise of domestic jurisdiction may require a “permissive rule”. However, this permissive rule is not expressed by the consent of another State. It is provided by principles such as territoriality or nationality. The sovereignty of other States is only the limit, the sovereignty of the forum State generally the basis of domestic jurisdiction. Finally, the application of the “international dispute settlement rule”417 of the Monetary Gold doctrine “by analogy” to domestic jurisdiction does not need to be contemplated, if there are principles and rules, like functional immunities, that are specifically concerned with domestic jurisdiction.418 In the absence of a gap, there is no need for analogy.

8.6 Conclusion This chapter assessed four potential prohibitive rules to foreign adjudicative jurisdiction. An absolute prohibitive rule for criminal proceedings in States other than the aggressor State does not naturally flow from the ambiguous, and differently understood, principle of par in parem non habet imperium. Such an absolute restriction to the domestic jurisdiction of aggressor States is also not supported by State practice. The Monetary Gold doctrine would claim a more attenuated prohibitive rule for proceedings without the consent of the aggressor State. However, extending a rule originally developed for contentious proceedings of the International Court of Justice to domestic criminal jurisdiction ignores the focus of criminal trials on the responsibility of individuals. It disregards that domestic jurisdiction is not based on foreign sovereignty, as expressed in the requirement of consent, but in most cases on the sovereignty of the forum State. The most relevant legal challenges for foreign adjudicative jurisdiction are personal and functional immunity. Personal immunity is a prohibitive rule under customary international law which precludes States other than the aggressor State 414

In the same vein, Wrange 2017, p. 713. Thienel 2016, pp. 234 et seq. Similarly, Epping in Epping and Heintschel von Heinegg 2018, §59 mn. 54; Shaw 2021, p. 943. 416 Compare Article 36 of the ICJ Statute with Sections 3 et seq. of the German Criminal Code. 417 See Crawford 1984, p. 80. 418 For a categorization of the Monetary Gold principle as one which applies to international tribunals and functional immunities as rules originally developed with respect to domestic courts, see Akande 2010, p. 13. 415

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from exercising adjudicative criminal jurisdiction against foreign Heads of State, Heads of Government and Ministers of Foreign Affairs while they are in office. Since this troika is a small range of persons, personal immunity would not bar all imaginable criminal proceedings for aggression. Moreover, personal immunity is limited to the time in office. The permanent functional immunity, in contrast, has the potential to bar all criminal proceedings of domestic courts over foreign aggressors. This conduct-based prohibitive rule requires an “official act” which appears to be an essential ingredient of the crime of aggression. Nuremberg not only acknowledged individual criminal responsibility for the crime of aggression. It also gave rise to a customary rule which renders functional immunities inapplicable regarding the crime of aggression, irrespective of the national or international nature of the tribunal. Those who perceive Nuremberg as the source of a rule relevant for only international criminal proceedings, will not find enough State practice at the domestic level which confirms the inapplicability of functional immunity in domestic aggression proceedings. Nonetheless, they can still claim that functional immunity is inapplicable to the crime of aggression based on the limited affirmative State practice at the domestic level in combination with deductive reasoning. Among the deductive reasonings, the preferable “crimes under international law” avenue supports the inapplicability of functional immunity with respect to the crime of aggression. Depending on the applicability of universal jurisdiction to the crime of aggression, this avenue may bring about a differentiation between proceedings in directly affected States and third States, which is unknown for other crimes under international law. Overall, it is intriguing that functional immunity, if applicable to the adjudicative jurisdiction of the victim State, would favor protection of the sovereignty of the aggressor State over the sovereignty of the victim State. The sovereignty of the former stands behind functional immunity. The sovereignty of the latter stands behind territorial jurisdiction. The applicability of functional immunity as a prohibitive rule to the exercise of territorial jurisdiction would favor the sovereignty of the State which has fundamentally disrespected the sovereignty of another State by using armed force in manifest violation of the UN Charter. The relationship between the exercise of jurisdiction and immunity could be interpreted in dialectical terms, to find a right balance between the rights and interests of the States in question. Under such a balancing approach, the aggressor State’s “blame for the predicament”419 would not be sufficiently taken into account if functional immunity applied in criminal proceedings of the victim State. In the words of Lord Wright, the chairman of the UN War Crimes Commission: “[W]hen the aggressive state goes beyond its own boundary and its own domestic affairs in order to interfere with the freedom and independence of other sovereign states, the latter are entitled to resist and punish the aggressor; in that event it is clear to me, that the doctrine of the independent sovereignty of the wrongdoer no longer applies and equally that the concept of sovereignty cannot be invoked to protect those members

419

Which is a concept known in other balancing exercises, see Neumann 2014.

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of the aggressor state who are personally guilty of leading the nation into the criminal courses which involve the trouble”.420 Pragmatically, the applicability of functional immunity to foreign adjudicative jurisdiction could be perceived as the legal anticipation of expected practical hurdles. Realistically, States would depend on the goodwill of the aggressor State when they intend to prosecute a foreign official for the crime of aggression. There might be the slim chance that a former high-ranking official and alleged aggressor visits a State with jurisdiction over the crime of aggression, or an allied State willing to extradite the suspected aggressor. In all other cases, however, the prosecuting State depends on the extradition of the suspect by the aggressor State. This is not so much different from requiring consent in the form of a waiver of immunity. Due to the unpredictability of world politics, however, international criminal law is better placed with an optimistic attitude towards accountability. The inapplicability of functional immunity based on an inductive and deductive reasoning better reflects this endeavor.

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Triffterer O, Burchard C (2021) Article 27. In: Ambos K (ed) Rome Statute of the International Criminal Court, 4th edn. C.H. Beck, Munich Turkovi´c K, Munivrana Vajda (2017) Croatia. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 863–879 UN General Assembly (1946) Resolution 95(I), Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, 11 December 1946, UN Doc. A/RES/1/95 Unconditional Surrender of Japan (1945) (supplement) American Journal of International Law 39: 264–265 United Nations War Crimes Commission (1948) Law Reports of Trials of War Criminals, Vol. VII United Nations War Crimes Commission (1949) Law Reports of Trials of War Criminals, Vol. XIII van Alebeek R (2008) The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law. Oxford University Press, Oxford van Alebeek R (2018) The “International Crime” Exception in the ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back? AJIL Unbound 112: 27–32 van Alebeek R (2019) Functional Immunity of State Officials from the Criminal Jurisdiction of Foreign National Courts. In: Ruys T (ed) The Cambridge Handbook of Immunities and International Law. Cambridge University Press, pp 496–524 van den Herik L, Stahn C (eds) (2012) The Diversification and Fragmentation of International Criminal Law. Brill Nijhoff, Leiden van Panhuys H F (1964) In the Borderland Between the Act of State Doctrine and Questions of Jurisdictional Immunities. International and Comparative Law Quarterly 13: 1193–1213 van Schaack B (2011) Negotiating at the Interface of Power and Law: The Crime of Aggression. Columbia Journal of Transnational Law 49: 505–601 van Schaack B (2012) Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression. Journal of International Criminal Justice 10: 133–164 van Steenberghe R (2011) The Obligation to Extradite or Prosecute: Clarifying its Nature. Journal of International Criminal Justice 9: 1089–1116 van der Wilt H, Nollkaemper A, Dolman M M, Kleffner J K (eds) (2009) System Criminality in International Law. Cambridge University Press, Cambridge, UK/New York Veroff J (2016) Reconciling the Crime of Aggression and Complementarity: Unaddressed Tensions and a Way Forward. The Yale Law Journal 125: 730–772 Weatherall T (2015) Jus Cogens: International Law and Social Contract. Cambridge University Press, Cambridge Webb P (2016) International Judicial Integration and Fragmentation. Oxford University Press, Oxford, UK/New York, NY Webb P (2018) How far does the Systemic Approach to Immunities take us? AJIL Unbound 112: 16–21 Werle G (2021) Anmerkung zu BGH, Urteil v. 28. 1. 2021 – 3 StR 564/19 (OLG München). Juristenzeitung 732–736 Werle G, Jeßberger F (2020) Principles of International Criminal Law, 4th edn. Oxford University Press, Oxford Woetzel R K (1960) Nuremberg Trials in International Law. Frederick Praeger, London Woolf C N S (1913) Bartolus of Sassoferrato: His Position in the History of Medieval Political Thought. Cambridge University Press, London Wrange P (2017) The Crime of Aggression, Domestic Prosecutions and Complementarity. In: Kreß C, Barriga S (eds) The Crime of Aggression: A Commentary. Cambridge University Press, Cambridge, pp 704–751 Wright R (1948) Introductory Chapter. In: The United Nations War Crimes Commission (ed) History of the United Nations War Crimes Commission and the Development of the Laws of War. H.M. Stationery Office, London, pp 1–23 Wuerth I (2012) Pinochet’s Legacy Reassessed. American Journal of International Law 106: 731– 768

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Yang X (2012) State Immunity in International Law. Cambridge University Press, Cambridge/New York Zegveld L (2001) The Bouterse Case. Netherlands Yearbook of International Law 32: 97–118 Zhang T (2016) The Fall of the Tigers of Hong Kong: Chinese War Crimes Trials of Three Japanese Governors of Hong Kong. In: Liu D, Zhang B (eds) Historical War Crimes Trials in Asia. Torkel Opsahl Academic EPublisher, Brussels, pp 193–230

Other Documents Germany (2017) Statement on the Report of the International Law Commission at the 72nd session of the UN General Assembly Government of Liechtenstein (2018) Bericht und Antrag an den Landtag des Fürstentums Liechtenstein betreffend die Abänderung des Strafgesetzbuches, der Strafprozessordnung, des Gesetzes über die Zusammenarbeit mit dem Internationalen Strafgerichtshof und anderen Internationalen Gerichten sowie des Naturschutzgesetzes, 9 October 2018: Nr. 90/2018 Institut de Droit International (2001) Resolution on Immunities from Jurisdiction and Execution of Heads of State and of Government in International Law, Session of Vancouver Institut de Droit International (2009) Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, Session of Napoli Nicaragua (2017) Statement on the Report of the International Law Commission at the 72nd session of the UN General Assembly International Law Commission Summary Record of the 3365th Meeting, A/CN.4/SR.3365t Review Conference of the Rome Statute (2010) Resolution RC/Res.6 of 11 June 2010

Summary and Final Conclusions

The preceding discussion of the domestic implementation of the crime of aggression can be summarized by the following 45 final conclusions:

Chapter 2—An Obligation to Criminalize Aggression Under Domestic Law? 1. Under domestic constitutional law, an obligation to criminalize aggression is rarely explicit. It can be inferred from the duty to protect fundamental rights. Its establishment requires an extensive interpretative process to clarify, inter alia, whether constitutional obligations extend to transboundary activities, and whether fundamental rights of individuals can be violated by the crime of aggression, often falsely considered to be only directed against State interests. 2. Uncertainty about whether the principle of complementarity of the ICC Statute generates an obligation to criminalize is normally compensated for by the coercive enforcement system complementarity establishes. This system helps to achieve the same result as that sought by an obligation to criminalize ICC Statute crimes. That is, it achieves domestic criminalization. There is a threat of judicial intervention where States are legally “unable” to prosecute, due to the lack of a substantive norm. This creates a sovereignty-driven interest to implement the ICC Statute crimes into domestic law. 3. Due to the International Criminal Court’s restricted jurisdiction on aggression and the few complementarity-inspired domestic implementations, the coercive potential of complementarity on States is reduced. To avoid intervention by the International Criminal Court and foreign courts, States do not need to proactively enact legislation criminalizing aggression

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4. An obligation to criminalize aggression cannot be inferred from the obligation to criminalize propaganda for war in Article 20(1) of the ICCPR. However, it can be inferred from the obligation of States to ensure the human rights of individuals “within their jurisdiction”. This claim requires human rights law to be receptive of ius ad bellum considerations and to cover the transboundary activities of aggressors. The human rights relevance of aggression and the more generous extraterritorial scope of the obligation to ensure the right to life have been recently affirmed by the UN Human Rights Committee. This makes it easier to claim an obligation under the ICCPR regime than under the more restrictive ECHR regime. States Parties of the ICCPR are required to criminalize killings in their own territory resulting from foreign acts of aggression and killings abroad resulting from own acts of aggression. 5. There is not enough aggression-specific material to assume a customary international law obligation of States to criminalize aggression under domestic law. Such an obligation cannot be inferred from the customary international law obligation of States to prosecute “crimes under international law”. The obligation to prosecute is mainly based on State practice on genocide, crimes against humanity and war crimes. Inferring an obligation to criminalize aggression disregards the fact that an obligation to prosecute these three crimes does not imply a prior obligation to criminalize them. 6. Semi-deductive reasoning infers an obligation to criminalize aggression from the accepted consequences of ius cogens in the field of State responsibility. The obligation on the responsible State to make reparations could be interpreted to include the obligation to prosecute its agents once aggression occurs. To ensure their ability to fulfil this obligation, States would be required to criminalize violations of the ius cogens prohibition of aggression. 7. It requires an extensive interpretative process to infer an obligation to criminalize aggression from domestic fundamental rights, international human rights and ius cogens. For this reason, the claimed existence of such a soft legal obligation does not induce compliance.

Chapter 3—The Core Wrong of the Crime of Aggression 8.

The crime of aggression under the ICC Statute has a multidimensional protective scope. Like the underlying prohibition of the use of force, and despite the statecentric language of Article 8bis of the ICC Statute, it protects State sovereignty and international peace. 9. Individual interests are protected in a less straightforward way, if at all. They are possibly protected from actual and likely harm through the “gravity” qualifier of the “manifest” threshold. They are more certainly protected from the abstract harm caused by the shift from the law during peacetime to the more permissive regime of the law of armed conflicts. 10. Criminalization protects State sovereignty, international peace and, arguably, individual interests from the “aggressive” use of armed force “by a State”, triggered by persons from the leadership circle of that State. The “aggression”

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component limits criminality to uses of armed force of manifest unlawfulness and intensity. This expresses the accessorial, but selective, nature of the crime of aggression compared to the underlying ius ad bellum. The limitation to the conduct “by a State” implies the exclusion of violence by non-State actors. It suggests that the individual executing acts of ordinary combatants are absorbed by the conduct of the State. The limitation to persons from the leadership circle of a State, and the consequential exclusion of ordinary combatants, reflect the typical ability of leaders to trigger an overall State conduct relevant in the ius ad bellum.

Chapter 4—Mapping the Normative Gaps Under Domestic Law 11. Refraining from the implementation of the crime of aggression typically results in the inability of States to respond to aggressors with criminal law. States cannot capture the conduct of aggressors based on existing types of criminal offenses under domestic law, unless they implement the aggression definition of Article 8bis of the ICC, or have incorporated the crime of aggressive war modelled on the Nuremberg and Tokyo precedents. 12. Capturing aggression in the cumulative prosecution of ordinary criminal offenses would overemphasize the effects of aggression on individual interests. The protection of individual interests by the criminalization of aggression is less straightforward. It is integrated into the context of macro criminality committed against the collective interests of State sovereignty and international peace. The prosecution of ordinary criminal offenses would typically be barred by the “combatant’s privilege” if the conduct complied with international humanitarian law. 13. Normative gaps persist under the domestic law of States which have criminalized genocide, crimes against humanity and war crimes. Focusing on these three crimes that are committed cumulatively with, or subsequently to, the crime of aggression would cover the necessary “gravity” of a punishable act of aggression. It would also emphasize the description of aggression as being the “mother of all crimes”. However, it would fail to acknowledge the violation of State sovereignty and of international peace by the unlawful use of armed force. It would also fail to condemn all effects on individuals that result from the act of aggression. 14. The violation of ius ad bellum by the aggressive use of force cannot be reflected under the domestic law of States that have implemented the war crime of “excessive attack” and the crime against humanity of “other inhumane act”. Such an interpretation would disrespect the function of these vague terms. The term “excessive attack” leads to the proportionality test which provides a flexible rule. The term “other inhumane act” provides a residual clause for acts of which the drafters of the ICC Statute were unable to think.

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Chapter 5—The Restricted Jurisdictional Regime of the International Criminal Court 15. The inability to address the core wrong of the crime of aggression could leave States in a situation where they cannot prevent judicial intervention by the International Criminal Court. However, this risk is reduced due to the Court’s more consensual jurisdictional regime over the crime of aggression. 16. The more consensual regime upon State referral or proprio motu investigations excludes the territory and nationals of non-States Parties of the ICC Statute, as well as acts of aggression by States Parties that have previously opted out. It arguably excludes the territory and nationals of States Parties that have not ratified the Kampala Amendments. 17. This operationalization of consent is starkly contrasted with the fundamental principle of territorial jurisdiction, as enshrined in Article 12(2)(a) of the ICC Statute. It precludes the International Criminal Court from exercising jurisdiction upon State referral or proprio motu investigations on the mere basis of the ratification by the territorial State, irrespective of any form of consent by the national State of the accused. 18. Restricting the jurisdictional regime upon State referral or proprio motu investigations increases the dependency of the International Criminal Court on referrals of the often-paralyzed UN Security Council. This is why domestic implementations can reduce the risk of impunity for the commission of the crime of aggression.

Chapter 6—Options for Incorporating the Definition of the Crime of Aggression into Domestic Law 19. States can incorporate the definition of the crime of aggression into domestic law, either by copying the content of Article 8bis of the ICC Statute, referring in the domestic provision to Article 8bis of the ICC Statute, or adopting a modified definition. 20. The ICC Statute neither obliges States Parties to implement the definition of the crime of aggression into domestic law nor to implement it without modifications. The principle of complementarity allows flexibility. It suffices that States exercise jurisdiction over “substantially the same conduct” to render cases before the International Criminal Court inadmissible. 21. Complete implementation of the definition of the crime of aggression either by copying or by reference has not often been chosen by States. However, it is commonly considered as being an economic way of domestic implementation. It does not risk gaps that may give rise to the complementary jurisdiction of the International Criminal Court.

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22. Implementation by reference does not necessarily cause additional conflict with the principle of legality. This is due to the leadership clause of the crime of aggression. It is typically committed by persons that are legally trained or legally advised to understand the technique of references. This is particularly the case if the reference is static and targeted to Article 8bis of the ICC Statute. 23. Most implementers opted for modified implementations without leaving gaps to the definition of the ICC Statute. Some modifications led to over-inclusive implementations. They departed from the ICC Statute’s limitation to manifest violations of the UN Charter or from the absolute leadership nature of the crime of aggression. Most modifications, in contrast, were of a technical or conceptual nature and did not substantively change the definition. 24. The reasons for departing from the parent norm confirm one of the advantages of modified implementation. This is the possibility to consider distinctive features of the domestic legal culture, such as legislative preferences for consistency with the existing domestic norms or constitutional requirements like the principle of legality. 25. Even if the disciplinary effect of complementarity on States is reduced due to the restricted jurisdiction of the International Criminal Court, most implementers adopted the “manifest” threshold without modifications. This rejects the criticism of the “manifest” threshold. It confirms, at least from the perspective of the implementing States, that Article 8bis of the ICC Statute is sufficiently clear.

Chapter 7—Legislative Specification of the Geographical Ambit of Domestic Criminal Jurisdiction 26. To avoid State responsibility and corrective interpretations by domestic courts, the legislative specification of the geographical ambit of domestic jurisdiction needs to respect international law. It requires a “permissive rule” to rebut the presumption that international law prohibits States from extending criminal jurisdiction to matters with a foreign element. 27. The permissive rule of territoriality allows States to exercise prescriptive jurisdiction to cover situations where they are either the aggressor State or the victim State. As the place of commission is the only relevant factor for the principle of territoriality, the right to exercise territorial prescriptive jurisdiction cannot be challenged by the nationality of the perpetrator, or the nature of the crime of aggression. The common interpretation of the crime’s constituent element of “gravity” does not support an extension to States that are not directly aggressed, but suffer from the social, economic or environmental effects of the crime of aggression. 28. The nationality principle allows States to enact legislation on the crime of aggression typically arising from their own act of aggression. This is because the individual aggressor may have the nationality of the aggressor State, but this is not necessary.

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29. Apart from the judicial practice generated after World War II, deductive reasoning supports the applicability of the protective principle to the crime of aggression. The crime of aggression affects core sovereignty interests of a State and allows a technical form of self-defense. The protective principle thus permits States to criminalize aggression committed against them and seems to extend to allied States whose vital interests are threatened. 30. The passive personality principle allows States to exercise jurisdiction over crimes committed against their nationals. The jurisdictional link established by the nationality of a few victims abroad has been criticized as a standard that is “too nationalistic” for bringing to justice persons that have attacked the collective interests of the international community. Due to the contested applicability to other “crimes under international law”, it can be questioned a fortiori whether the passive personality principle applies to the crime of aggression. If it protects individual interests at all, the crime of aggression does so in a less straightforward way. 31. It is possible to assume a permissive rule to exercise universal prescriptive jurisdiction over the crime of aggression. Notably, this can be done using an inductive approach by emphasizing the practice of the International Military Tribunal in Nuremberg. With the IMT Charter and the subsequent endorsement by the international community, it led to an accelerated formation of a customary rule. This rule also applies at the domestic level. It has not since been rebutted by the limited and inconsistent dismissive State practice. The deductive reasoning based on the nature of aggression as a “crime under international law” also supports the assumption of such a permissive rule.

Chapter 8—Legal Challenges for Foreign Adjudicative Jurisdiction 32. In principle, prescriptive and adjudicative criminal jurisdiction are congruent. A State which has a right to exercise prescriptive jurisdiction over the crime of aggression is presumed to have the congruent authority to entertain legal proceedings against an alleged aggressor, unless there is a prohibitive rule under international law. 33. An absolute prohibitive rule for criminal proceedings in States other than the aggressor State does not naturally flow from the ambiguous principle of par in parem non habet imperium. It is also not supported by State practice. 34. An attenuated prohibitive rule for domestic proceedings without the consent of the aggressor State does not follow from the Monetary Gold doctrine. Originally developed for contentious proceedings of the International Court of Justice, this rule is not applicable to domestic criminal jurisdiction. The exercise of domestic criminal jurisdiction focuses on the responsibility of individuals. Its legitimacy is not based on foreign sovereignty, as expressed in the requirement of consent. In most cases, it is based on the sovereignty of the forum State.

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35. Personal immunity is a prohibitive rule under customary international law precluding adjudicative criminal jurisdiction against incumbent foreign Heads of State, Heads of Government and Ministers of Foreign Affairs. It temporally bars criminal prosecution in States, other than the aggressor State, of a small, albeit important, range of persons who may be in the position to commit a crime of aggression. 36. The practice generated and endorsed in the aftermath of World War II gave rise to a customary rule which renders the prohibitive rule of functional immunity inapplicable with respect to the crime of aggression, irrespective of the national or international nature of the tribunal. This claim is based on the reasoning of the International Military Tribunal at Nuremberg, which did not rely on its character as an international tribunal to claim that functional immunities had no relevance. It relied on the foundational logic of international criminal law. 37. Those who reject this preferable reasoning and require affirmative practice at the domestic level for the validity of Nuremberg’s claimed inapplicability of functional immunity will not find enough aggression-specific practice. 38. In combination with deductive reasoning, however, it can still be assumed that functional immunity does not apply in aggression proceedings in third States, or at least, in victim States. This claim makes the inapplicability of functional immunity dependent upon the categorization of aggression as a “crime under international law” and upon the recognition of universal or extraterritorial jurisdiction over it. This reasoning leads to coherency between prescriptive and adjudicative jurisdiction. Accepting the right to exercise universal prescriptive jurisdiction over the crime of aggression would necessarily lead to the assumption of a respective right to exercise universal adjudicative jurisdiction. 39. There is no prohibitive rule under international law which bars the exercise of domestic criminal jurisdiction over alleged aggressors after they have left office. Such aggression proceedings are neither barred by functional immunity, personal immunity, the principle of par in parem non habet imperium, nor by the Monetary Gold doctrine.

Chapter 2–Chapter 8 40. The dormancy of the crime of aggression and the limited aggression-specific practice at the domestic level make it difficult to assume customary obligations, rights or rules. Any assumption would require a degree of deductive reasoning. This can consist of drawing conclusions from the larger pool of domestic practice on other “crimes under international law”. Alternatively, it is possible to draw conclusions from the general claims made by the International Military Tribunal at Nuremberg. Deduction can also consist of inferring specific obligations, rights or rules from principles related to “crimes under international law” or related to ius cogens.

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41. The traditional overemphasis of the crime of aggression as a crime against State sovereignty complicates the assumption of an obligation to criminalize aggression based on human rights law or domestic fundamental rights law. It appears out of step with contemporary humanized international law. 42. The system of complementarity, as initially intended by States Parties of the ICC Statute, works differently with respect to the crime of aggression. This affects domestic implementation. The basis of the crime on the ius ad bellum and the necessary State act of aggression directed against another State mean the wrong of the crime of aggression cannot be fully captured by ordinary criminal offenses. This leaves States without implementation “unable” to avoid the risk of judicial intervention by the International Criminal Court through domestic proceedings. Due to the more restricted jurisdictional regime of the International Criminal Court, however, there is virtually no risk of judicial intervention unless States express their consent to the Kampala Amendments. Legislative action is not required to avoid judicial intervention, but to avoid impunity. 43. The explicit inclusion of a State act of aggression in the definition is why the crime of aggression faces more legal challenges than other crimes whose link to the State is not an “essential ingredient”. However, challenges of this kind undermine the revolutionary idea of international criminal law to hold individuals responsible who cannot hide behind the sovereignty of their State. These challenges afford more protection to the sovereignty of a State which has fundamentally disrespected the sovereignty of another State. 44. The advantages of international criminal law over general international law are contested regarding the crime of aggression even though the commission of this crime was responsible for the emergence of this “new international law” after World War II. Regarding the crime of aggression, it is more difficult to assume the advantages that tend to come along with crimes belonging to this field of law, such as the obligation to exercise jurisdiction, the right to exercise universal jurisdiction and the inapplicability of functional immunities in domestic proceedings. 45. The domestic implementation of the crime of aggression gives States the opportunity to affirm the general claims made by the International Military Tribunal in Nuremberg at the domestic level. Implementation can also increase the protection of territory from foreign aggression by establishing jurisdiction based on the most fundamental principle of territoriality. States can thereby compensate for the restricted jurisdiction of the International Criminal Court and achieve what a ratification of the Kampala Amendments is incapable of – the exercise of criminal jurisdiction without requiring the consent of the other State concerned.

Annex: Domestic Legislation

A.1 Afghanistan Afghan Criminal Code1 Article 26 Universal Jurisdiction The perpetrator of crimes which are recognized as crime according to international documents and he/she is available in Afghanistan shall be prosecuted according to provisions of Afghanistan laws provided that these acts are considered crimes in internal laws and specific punishment and other territorial, personal and inherent jurisdictions are not applicable. Article 341 Crime of Aggression against a State (1) Commission of any of the following acts by a person who leads the political or military power of a State and by its nature, gravity and scale constitutes a manifest violation of the Charter of the United Nations shall be considered crime of aggression against a state. 1. The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; 2. Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; 3. The blockade of the ports or coasts of a State by the armed forces of another State; 1

Penal Code of the Islamic Republic of Afghanistan, in Ministry of Justice, Official Gazette 1260, Special Issue, May 15, 2017, entered into force in February 2018. Translation by Justice Sector Support Program. After the Taliban takeover, the law is no longer applied.

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4. An attack by the armed forces of a State on the land, sea or air forces of another State; 5. The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; 6. The action of a State in allowing its territory, which it has place at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; 7. The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts stated in subparagraphs (1-6) of paragraph (1) of this article, or its substantial involvement therein (2) Perpetrators of one of the crime(s) stated in paragraph (1) of this article shall be sentenced to grade one continued imprisonment. (3) The initiation of criminal case for the perpetrator of crime of aggression against a state shall be subject based on the complaint of the state which has been subjected to aggression.

A. 2 Armenia Armenian Criminal Code Article 15 Effect of Criminal Law with Regard to Persons who Committed Crimes Outside the Territory of the Republic of Armenia (1) … (2) … (3) Foreign citizens and stateless persons not permanently residing in the Republic of Armenia, who committed a crime outside the territory of the Republic of Armenia, are subject to criminal liability under the Criminal Code of the Republic of Armenia, if they committed: 1. such crimes which are provided in an international treaty of the Republic of Armenia; 2. such grave and particularly grave crimes which are directed against the interests of the Republic of Armenia or the rights and freedoms of the citizens of the Republic of Armenia. Article 384 Aggressive War (1) Planning or preparing an aggressive war is punished with imprisonment for a term from five to ten years. (2) Starting or conducting an aggressive war is punished with imprisonment for a term from eight to fifteen years.

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A.3 Austria Austrian Criminal Code2 Section 64 Criminal Acts Committed Abroad, Punishable Irrespective of the Laws of the Place of Commission (1) Austrian criminal law applies irrespective of the laws applicable at the place of commission for the following crimes committed abroad: …. 4c. torture (Section 312 a), enforced disappearance of a person (Section 312 b) and crimes of the 25th Part of the Criminal Code, if: (a) the perpetrator or the victim is an Austrian, (b) other Austrian interests have been violated by the act, or (c) at the time of the offence the perpetrator was a foreigner and either resided in Austria or is present in Austria and cannot be extradited. Section 321k Crime of Aggression (1) Whoever is in a position effectively to exercise control over or to direct the political or military action of a State, and initiates or executes an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations, shall be punished with imprisonment from ten to twenty years. (2) Whoever, under the circumstances described in paragraph 1, plans or pre- pares such an act of aggression, shall be punished with imprisonment from five to ten years. (3) For the purpose of paragraph 1, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

A.4 Azerbaijan Azerbaijani Criminal Code Article 12 Applicability of Criminal Law Concerning Persons who have Committed a Crime out of Border of the Republic of Azerbaijan … 2

Bundesgesetz vom 23. Jänner 1974 über die mit gerichtlicher Strafe bedrohten Handlungen (Strafgesetzbuch–StGB), BGBl. Nr. 60/1974 of 23 January 1974, as amended by BGBl. I Nr. 112/2015 of 13 August 2015.

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(3) Citizens of the Republic of Azerbaijan, foreigners and stateless persons, who have committed crimes against the peace and mankind’s, war crimes, human trafficking, …and also other crimes, punish of which stipulated in international agreements to which the Republic of Azerbaijan is a party, shall be instituted to criminal liability and punishment under the Present Code, irrespective of a place of committing a crime. Article 100 Planning, Preparation, Implementation or Conducting of Aggressive War (1) Planning, preparation or implementation of aggressive war shall be punished by imprisonment for the term from eight up to ten years. (2) Conducting of aggressive war shall be punished by imprisonment for the term from ten up to fifteen years or life imprisonment.

A.5 Belarus Belarusian Criminal Code Article 6 Applicability of this Code Concerning Persons who Committed a Criminal Offense Outside the Republic of Belarus (1) … (2) … (3) This Code applies independently of the criminal law in force in the place where the act is committed in case of the following offences: 1. genocide (Article 127); 2. crimes against the security of mankind [crimes against humanity] (Article 128), … 6. violation of the laws and customs of war (Article 135); … 9. other crimes committed abroad, which are prosecutable on the basis of a treaty to which Belarus is a party. Article 122 Preparing or Conducting an Aggressive War (1) Planning or preparing an aggressive war shall be punished by imprisonment of five to fifteen years. (2) Starting or conducting an aggressive war shall be punished by imprisonment for a term of seven to twenty-five years or life imprisonment, or the death penalty with confiscation of property or without such confiscation.

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A.6 Croatia Croatian Criminal Code3 Article 16 Criminal Offences Committed Abroad against Internationally Protected Legal Interests The criminal legislation of the Republic of Croatia shall apply to anyone who outside its territory commits any of the criminal offences referred to in Articles 88, 90, 91, 97, 104, 105 and 106 of this Code or a criminal offence which the Republic of Croatia is required to punish under an international treaty even though committed abroad. Article 89 Crime of Aggression (1) Whoever, being in a position effectively to exercise control over or to direct the political or military action of a State, uses the armed forces of one State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations executes an act of aggression which, by its character, gravity and scale, constitutes a violation of the Charter of the United Nations shall be sentenced to imprisonment for a term of at least five years or to long-term imprisonment. (2) Whoever takes part in the operations of the armed forces referred to in paragraph 1 of this article shall be sentenced to imprisonment for a term of between three to fifteen years. (3) Whoever directly and publicly incites the crime of aggression shall be sentenced to imprisonment for a term of between one and ten years. (4) Any of the following acts, regardless of a declaration of war, shall qualify as an act of aggression referred to in paragraph 1 of this article: 1. The invasion or attack by the armed forces of a State on the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; 2. Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; 3. The blockade of the ports or coasts of a State by the armed forces of another State; 4. An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; 5. The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; 3

Criminal Code passed by the Croatian Parliament at its session on 21 October 2011, entered into force on 1 January 2013. Official Gazette of the Republic of Croatia ‘Narodne novine’ No. 125/11.

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6. The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; or 7. The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. Former Article 157 War of Aggression (1997 Croatian Criminal Code) (1) Whoever, regardless of whether a war has previously been declared or not, wages a war of aggression by commanding an armed action of one State against the sovereignty, territorial integrity or political independence of another State, so that such an action is performed by invasion or by an armed attack on its territory, aircraft or ships, or by the blockading of ports or shores or by the military occupation of the territory, or in some other way which denotes the forcible establishment of rule over such a State, shall be punished by imprisonment for not less than ten years or by long-term imprisonment. (2) The same punishment as referred to in paragraph 1 of this article shall be inflicted on whoever, for the purpose of waging a war of aggression of one State against another, commands or enables the sending of armed mercenary groups or other paramilitary armed forces into a State, so that these forces achieve the aims of a war of aggression. (3) The same punishment as referred to in paragraph 1 of this article shall be inflicted on whoever acts according to a command for action from armed forces or paramilitary armed forces for the purpose of waging a war of aggression. (4) Whoever calls or instigates a war of aggression shall be punished by imprisonment for one to ten years.

A.7 Cyprus Cypriot Rome Statute for the Establishment of the International Criminal Court (Ratification) Law 8(III)/2002 as amended by Law 23(III)/2006, Law 13(III)/2013 and Law 3(Ill)/2018) Section 2 Definitions For the purpose of this law, and without prejudice to a different meaning emerging from the text, … “aggression” means any of the acts specified in Article 8bis of the Rome Statute

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Section 4 Commission of Genocide, a Crime Against Humanity, War Crime or a Crime of Aggression (1) Any person who commits genocide, a crime against humanity, a war crime or a crime of aggression is guilty of a felony punishable by life imprisonment. (2) … Section 6 Jurisdiction of the Court Irrespective of the provisions of article 5 of the Criminal Code,4 the Court5 shall have jurisdiction to determine any offence contrary to this Law6 whether committed within or outside the territory of the Republic and whether committed by a citizen of the Republic or by some other person.

A.8 Czech Republic Czech Criminal Code Section 7 Principle of Protection and Principle of Universality (1) The Czech law shall apply when determining the liability to punishment of torture and other inhuman and cruel treatment (Section 149), forgery and alteration of money (Section 233), disposing of counterfeited and altered money (Section 235), manufacturing and possession of forgery tools (Section 236), unauthorised production of money (Section 237), subversion against the republic (Section 310), terrorist attack (Section 311), terror (Section 312), sabotage (Section 314), espionage (Section 316), violence against an public organ (Section 323), violence against a public offi cer (Section 325), forgery and fraudulent alteration of an official document (Section 348), criminal conspiracy (Section 361 paras. 2 and 3), genocide (Section 400), attack against humanity (Section 401), apartheid and discrimination against a group of people (Section 402), preparation of aggressive war (Section 406), using prohibited means of combat and unlawful warfare (Section 411), war cruelty (Section 412), persecution of a population (Section 413), plundering in the war area (Section 414), misuse of internationally acknowledged symbols and signs and state coat of arms (Section 415), misuse of a flag and ceasefire (Section 416), assaulting a parliamentarian (Section 417) even if such crime has been committed abroad by a foreign national or a stateless person with no permanent residence permit in the Czech Republic. (2) … 4

Article 5 of the Cypriot Criminal Code is the general provision that establishes jurisdiction, inter alia, on the basis of the principle of territoriality, of the principle of protective jurisdiction and the nationality principle. 5 Which means Assize Court in the Republic. 6 Which contains since 2018 the crime of aggression.

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Section 405a Act of Aggression Who in a position allowing for effective exercise of control over a State or directing the political or military action of a State, contrary to provisions of international law, plans, prepares, initiates or executes aggressive act that involves the use of armed force by such a State against the sovereignty, territorial integrity or political independence of another State, or in the use of armed force by such State in any other manner inconsistent with the Charter of the United Nations and which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations, shall be punished by imprisonment for twelve to twenty years or by an exceptional punishment.

A.9 Ecuador Ecuadorian Criminal Code Article 14 Geographical Scope of Application Ecuadorian criminal law applies to (1) Any offense committed on the national territory (2) offenses committed outside the territory of Ecuador in the following cases: … (d) When the criminal offense affects legal goods protected by international law, through international instruments ratified by Ecuador, as long as there has been no trial initiated in another jurisdiction; (e) When the offenses constitute serious violations of human rights, in accordance with the procedural rules established in this Code. Article 88 Aggression The person who, independent of the existence of a declaration of war, being in a position to effectively exercise control over or to direct the political or military action of a State, orders or actively participates in the planning, preparation, initiation or execution of an act of aggression or an armed attack against the territorial integrity or the political independence of the State of Ecuador or another State, except in the cases foreseen in the Charter of the United Nations, shall be punished with imprisonment from twenty-six to thirty years. Article 401 Universal Jurisdiction Crimes against the humanity [delitos contra la humanidad] can be investigated and prosecuted in the Republic of Ecuador, provided that they have not been tried in another State or by international criminal courts, in accordance with the provisions of this Code and the international treaties signed and ratified.

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A.10 Estonia Estonian Criminal Code7 Section 8 Applicability of penal law to acts against internationally protected legal rights Regardless of the law of the place of commission of an act, Estonian criminal law shall apply to any act committed outside the territory of Estonia if punishability of the act arises from an international obligation binding on Estonia. Section 91 Crime of Aggression8 (1) Participation in the leading, execution or preparation of an act of aggression controlling or directing the activities of the State or threatening with an act of aggression by a representative of the State is punishable by eight to twenty years’ imprisonment or life imprisonment. (2) The same act, if committed by a legal person, is punishable by a pecuniary punishment. (3) For the purposes of this Code, an act of aggression is the use of armed force by one State against another State in violation of international law. Section 92 Propaganda for War (1) Any incitement to war or other use of arms in violation of the generally recognised principles of international law is punishable by a pecuniary punishment or up to three years’ imprisonment. (2) The same act, if committed by a legal person, is punishable by a pecuniary punishment.

A.11 Finland Finnish Criminal Code9 Chapter 1 Scope of application of the criminal law of Finland Section 7 International Offence (1) Finnish law applies to an offence committed outside of Finland where the punishability of the act, regardless of the law of the place of commission, is based on an international agreement binding on Finland or on another statute 7

The Estonian Criminal Code was adopted on 6 June 2001 and entered into force on 1 September 2002. 8 The revised version of Section 91 entered into force on 1 January 2015. 9 Criminal Code of Finland, Act no. 39/1889 as amended by Act no. 1718/2015 of 30 December 2015.

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or regulation internationally binding on Finland (international offence). Further provisions on the application of this section shall be issued by Decree.10 (2) … Chapter 11 War Crimes and Crimes Against Humanity Section 4 a Crime of Aggression A person who is in a position effectively to exercise control over or to direct the political or military action of a State, commits an act of aggression, which by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations (Finnish Treaty Series 1/1956), shall be sentenced for a crime of aggression to imprisonment for at least four years or for life. An attempt is punishable. Act of aggression means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another Stage, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, committed by a State or by the armed forces of a State, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (1) the invasion or attack of the territory of another State, or any military occupation resulting from such invasion or attack, or any annexation of the territory of another State or part thereof; (2) bombardment against the territory of another State or the use of any weapons against the territory of another State; (3) the blockade of the ports or coasts of another State; (4) an attack on the land, sea or air forces, or marine an air fleets of another State; (5) the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (6) allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (7) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts against another State of such gravity as to amount to the acts listed above in Subsections 1–6, or substantial involvement in sending them.

10

For the latest version of the decree, see https://www.finlex.fi/fi/laki/ajantasa/1996/19960627. Accessed 15 September 2022.

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Section 4 b—Preparation of a crime of aggression A person referred to in Section 4 a, Subsection 1, who for the purpose of committing a crime of aggression referred to in Section 4 a (1) conspires with another to commit a crime of aggression or (2) makes a detailed plan for a crime of aggression, Shall be sentenced for preparation of crime of aggression to imprisonment for at least four months and at most four years. Section 14 a—Restrictive provision Provisions in Sections 4 a and 4 b of this Chapter shall be only applicable if the act of aggression referred to in Section 4 a, Subsections 3 and 4, is committed. When applying Sections 4 a and 4 b, Section 7, Subsection 2 of Chapter 5 shall not be applied to an inciter and abettor.

A.12 Georgia Georgian Criminal Code Article 5 Criminal Liability for Crimes Committed Abroad (1) … (2) … (3) Foreigners and stateless persons who commit crimes abroad shall be criminally liable under this Code, provided that the act constitutes a serious or particularly serious crime against the interests of Georgia or if criminal liability for this crime is prescribed by the treaties to which Georgia is a party. Article 404 Planning, Preparation, Commencement or Execution of an Act of Aggression (1) The planning or preparation of an act of aggression, shall be punished by imprisonment for a term of seven to fifteen years. (2) The commencement or execution of an act of progression, shall be punished by imprisonment for a term of fifteen to twenty years or with life imprisonment. Note (1) For the act provided for by this article, a person who, due to his/her position, is able to exercise efficient control or management over the state political or military actions, shall incur criminal liability. (2) For the purposes of this Chapter, an “act of aggression” shall mean the use of the armed forces of the State against another state’s sovereignty, territorial integrity or political independence, or in any other manner, which contradicts the Charter of the United Nations.

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(3) A person shall incur criminal liability for planning, preparation, commencement or execution of such an act of aggression which, in its nature, gravity and extent, clearly violates the Charter of the United Nations. Article 405 Calling for Unleashing Aggressive War (1) Calling the country for unleashing the war of aggression—shall be punishable by fine or by imprisonment for up to three years in length. (2) The same action perpetrated via media or by a person holding a state-political office—shall carry legal consequences of fine or imprisonment ranging from two to five years in length, and be deprived of the right to occupy a position or pursue a particular activity for the term not in excess of three years.

A.13 Germany German Code of Crimes Against International Law Section 1 Scope of Application This Act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences under Section 6 to 12 even when the offence was committed abroad and bears no relation to Germany. This Act shall apply to offences under Section 13 which were committed abroad, regardless of the law applicable in the locality where they were committed, if the offender was German or the offence was directed against the Federal Republic of Germany. Section 13 Crime of Aggression11 (1) Whosoever wages a war of aggression or commits another act of aggression which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations shall be liable to imprisonment for life. (2) Whosoever plans, prepares or initiates a war of aggression or another act of aggression under Subsection 1 shall be liable to imprisonment for life or imprisonment for not less than ten years. The offence in sentence 1 of this subsection is only punishable if 1. a war of aggression was waged or another act of aggression was committed or 2. it creates the danger of a war of aggression or another act of aggression for the Federal Republic of Germany. (3) An act of aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. 11

Entered into force on 1 January 2017.

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(4) Only a person who is in a position to effectively exercise control over or to direct the political or military action of a State may be subject to criminal liability under Subsections (1) and (2). (5) In less serious cases under Subsection (2), the punishment shall be imprisonment for not less than five years. German Criminal Code Former Section 80 Preparation of a War of Aggression12 Whoever prepares a war of aggression (Article 26 Subsection (1), of the Basic Law) in which the Federal Republic of Germany is supposed to participate and thereby creates a danger of war for the Federal Republic of Germany, shall be punished with imprisonment for life or for not less than ten years.

A.14 Hungary Hungarian Criminal Code22 Section 153 Incitement for War (1) Any person who engages in incitement to war or otherwise displays war propaganda is guilty of a felony and punishable by imprisonment between two years to eight years. (2) The punishment shall be imprisonment between five years to fifteen years, if the crime is accompanied by a great publicity. (3) Any person who engages in preparation for incitement for war, punishable by imprisonment of up to three years.

A.15 Kazakhstan Kazakhstani Criminal Code13 Article 8 Effect of Criminal Law in Relation of Persons, Committed a Criminal Offense Outside the Republic of Kazakhstan (1) …Provision of this Code shall be applied independent from the place of commission of a crime in relation of citizens of the Republic of Kazakhstan, stateless persons, permanently residing in the territory of the Republic of Kazakhstan, in the cases of commission of terroristic or extremist crime or crimes against 12 13

Removed since 1 January 2017. Law No. 226-V, entered into force on 1 January 2015.

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peace and human security, unless otherwise established by international treaty of the Republic of Kazakhstan. Article 160 Planning, Preparation, Initiation or Waging of a War of Aggression (1) Planning and preparation of aggressive war—shall be punished by imprisonment for a term of ten to fifteen years. (2) Or waging of a war of aggression—shall be punished by imprisonment for a term of fifteen to twenty years or life imprisonment or the death penalty.

A.16 Latvia Latvian Criminal Code Section 4 Applicability of The Criminal Law Outside the Territory of Latvia … (4) Foreigners who do not have a permanent residence permit in the Republic of Latvia and who have committed a criminal offence in the territory of another state or outside the territory of any state, in the cases provided for in international agreements binding upon the Republic of Latvia, irrespective of the laws of the state in which the offence has been committed, shall be held liable in accordance with this Law, if they have not been held criminally liable for such offence or committed to stand trial in the territory of another state. Section 72 Crimes against Peace For a person who commits crimes against peace, that is, commits planning, preparation or instigation of, or participation in, military aggression, or commits conducting of a war of aggression in violation of international agreements binding upon the Republic of Latvia, or commits participation in a conspiracy for the purpose of committing crimes mentioned in this Section, the applicable sentence is life imprisonment or deprivation of liberty for a term of not less than three and not exceeding twenty years. Section 77 Incitement to War of Aggression For a person who commits public incitement of a war of aggression or of instigation of military conflict, the applicable sentence is deprivation of liberty for a term not exceeding eight years.

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A.17 Liechtenstein Liechtenstein Criminal Code Section 64 Criminal Acts Committed Abroad, Punishable Irrespective of the Laws of the Place of Commission (1) Liechtenstein criminal law applies irrespective of the laws applicable at the place of commission for the following crimes committed abroad: …. 4c. torture (Section 312a), enforced disappearance of a person (Section 312 b) and crimes of the 25th Part of the Criminal Code, if: (a) the perpetrator or the victim is an Austrian, (b) other Austrian interests have been violated by the act, or (c) at the time of the offence the perpetrator was a foreigner and either resided in Austria or is present in Austria and cannot be extradited. Section 321 l Crime of Aggression (1) Whoever is in a position effectively to exercise control over or to direct the political or military action of a State, and initiates or executes an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations, shall be punished with imprisonment from ten to twenty years. (2) Whoever, under the circumstances described in paragraph 1, plans or prepares such an act of aggression, shall be punished with imprisonment from five to ten years. (3) For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

A.18 Lithuania Lithuanian Criminal Code Article 7. Criminal Liability for the Crimes Provided for in International Treaties Persons shall be held liable under this Code regardless of their citizenship and place of residence, also of the place of commission of a crime and whether the act committed is subject to punishment under laws of the place of commission of the crime, where they commit the following crimes subject to liability under international treaties:

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(1) crimes against humanity and war crimes (Articles 99-113); … Article 110 Aggression Any person who causes an aggression against another state or is in command thereof shall be punished by imprisonment for a period of ten up to twenty years or by life imprisonment.

A.19 Luxembourg Luxembourg Criminal Code14 Article 136 quinquies (1) The planning, preparation, initiation or execution, by a person in a position to effectively exercise control over or direct the political or military action of a State, of an act of aggression, which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations, is considered a crime of aggression. For the purpose of the first subparagraph, ‘act of aggression’ means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. It refers to the following acts: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; 14

Criminal Code including amendments of 27 February 2012.

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(g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. (2) The offences listed in paragraph 1 shall be punished with imprisonment from ten to fifteen years. Luxembourg Code of Criminal Procedure Article 7-4 When a person who has committed abroad one of the offenses provided for in articles 112-1,…to 136 quinquies…of the Penal Code is not extradited, the case will be submitted to the competent authorities for the purpose of prosecution in accordance with the rules provided for.

A.20 Moldova Moldovan Criminal Code15 Article 11 Geographical Application of Criminal Law (1) … (2) … (3) If not convicted in a foreign state, foreign citizens and stateless persons without permanent domiciles in the territory of the Republic of Moldova who commit crimes outside the territory of the Republic of Moldova shall be criminally liable under this Code and shall be subject to criminal liability in the territory of the Republic of Moldova provided that the crimes committed are adverse to the interests of the Republic of Moldova or to the peace and security of humanity, or constitute war crimes including crimes set forth in the international treaties to which the Republic of Moldova is a party. Article 139 Planning, Preparation, Unleashing or Waging War (1) Planning, preparing or unleashing a war shall be punished by imprisonment for eight to fifteen years. (2) Waging a war shall be punished by imprisonment for ten to twenty years or by life imprisonment.

15

Amended by Law No. 277-XVI dated 18 December 2008, in force as of 24 May 2009.

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A.21 Netherlands International Crimes Act of the Netherlands Article 2 Jurisdiction (1) Without prejudice to the provisions in the Criminal Code and the Code of Military Criminal Law, Dutch criminal law applies: (a) to anyone who is guilty of one of the crimes described in this Act outside the Netherlands, when the suspect is in the Netherlands or in the public entities Bonaire, St. Eustatius and Saba; (b) to anyone who is guilty of one of the crimes described in this Act outside the Netherlands, when the offence was committed against a Dutch national, a Dutch official, or a Dutch vehicle, vessel or aircraft; (c) to the Dutch national who is guilty of one of the crimes described in this Act outside the Netherlands. (2) For the purposes of the first paragraph, the foreign national who has a permanent place of residence or residence in the Netherlands and, insofar as it concerns the application of the first paragraph, under c, the foreign national who becomes a Dutch national after the commission of the offence is treated as a Dutch national. Article 86b of the Criminal Code shall apply mutatis mutandis. Article 8b Crime of Aggression (1) Any person who, in a position to exercise effective control over or direct the political or military action of a State, plans, prepares, initiates or implements an act of aggression which by its nature, seriousness and scale constitutes an unmistakable violation of the Charter of the United Nations, shall be punished as guilty of the crime of aggression by life imprisonment or temporary imprisonment of not more than thirty years or a fine of the sixth category. (2) For the purposes of the first paragraph, "act of aggression" means the use of armed forces by a State against the sovereignty, territorial integrity or political independence of another State, or the use of armed violence by a State that is in any other way incompatible with the Charter of the United Nations. Each of the following acts, whether or not there is a declaration of war, shall in any case be regarded as an act of aggression: (a) the invasion or attack by the armed forces of a state from or on the territory of another state, respectively, or a military occupation, even if temporary, resulting from such invasion or attack, or the annexation by force of the territory of another state or part thereof; (b) the bombing by the armed forces of a state of the territory of another state or the use of any weapon by a state against the territory of another state; (c) the blockade of the ports or coasts of a state by the armed forces of another state;

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(d) an attack by the armed forces of a state on the land, sea or air forces or the naval and air fleet of another state; (e) the deployment of armed forces of a state present in the territory of that state with the consent of another state, in breach of the conditions laid down in the relevant agreement or an extension of their presence in that territory after the expiry of the agreement; (f) the fact that a state permits its territory, which it has made available to another state, to be used by that other state to commit an act of aggression against a third state; (g) the sending by or on behalf of a state of armed gangs, groups, disordered troops or mercenaries, who commit acts involving gun violence against another state which are so serious as to be equivalent to the acts mentioned above, or which are significantly involved in them.

A.22 North Macedonia North Macedonian Criminal Code Article 117 Application of the Criminal Legislature to Certain Crimes Committed Abroad The criminal legislature is applicable to whosoever commits a crime referred to in Article 268 of this Code abroad, if the forgery concerns domestic currency and as referred to in Articles 305 through 326, 357 through 359-a, 394-a through 394-d and 403 through 422 of this Code. Article 403-b Crimes of Aggression (1) Whosoever, having the real power to monitor or govern the political or military actions of the state, uses the armed forces of one state against the sovereignty, territorial integrity or political independence of another state or in any other manner contrary to the United Nations Charter takes an act of aggression, which according to its characteristics, complexity and size is a particular violation of the United Nations Charter, shall be sentenced to imprisonment of at least five years. (2) Whosoever participates in the actions of the armed forced referred to in paragraph (1) of this Article, shall be sentenced to imprisonment of three to five years. (3) Whosoever, directly and publicly, initiates crime of aggression, shall be sentenced to imprisonment of one to ten years. (4) Aggression as referred to in paragraph (1) of this Article, no matter whether a war is previously declared or not, shall be considered: 1. invasion or attack of the armed forces of one state on the territory of another state or military occupation, even temporary, resulting from such invasion

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2. 3. 4. 5.

6. 7.

or attack, or annexing the whole or part of the territory to another state by using force; bombarding the territory of one state by armed forces of another state or using any king of weapons of one state on the territory of another state; blocking of a port or waterside of one state by armed forces of another state; attack of armed forced of one state on the land, sea or air forces of another state; using the armed forces of one state that are on the territory of another state, by its consent contrary to the conditions foreseen by their agreement or extending the presence of the armed forced on the territory of another state upon termination of the agreement; giving permission to use the territory of one state which is at disposal to another state to be used for aggression against third state; or sending armed gangs, groups, paramilitary forces or mercenaries, by or in the name of the state, to take armed actions against another state, which according to their complexity correspond to the abovementioned actions or its considerable participation in such actions.

Article 415 Instigation to Aggressive War A person who calls out or instigates to aggressive war shall be punished with imprisonment of one to ten years.

A.23 Portugal Portuguese Law No. 31/2004 Article 5 Acts Committed Outside the Portuguese Territory (1) The provisions of this law shall also be applicable to acts committed outside the national territory in cases where the perpetrator is present in Portugal and cannot be extradited or where it has been decided not to surrender the perpetrator to the International Criminal Court. Article 17 Incitement to War Anyone who publicly and repeatedly incites hatred against a people with the intention of initiating a war shall be punished with the penalty of imprisonment for 1 to 5 years.

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A.24 Russia Russian Criminal Code Article 353 Planning, Preparation, Unleashing or Waging of Aggressive War (1) Planning, preparation or unleashing of an aggressive war shall be punished by deprivation of freedom for a term of seven to fifteen years. (2) Waging of aggressive war shall be punished by deprivation of freedom for a term of ten to twenty years.

A.25 Samoa Samoan International Criminal Court Act16 Section 7A Crime of Aggression (1) A person who, in Samoa or elsewhere, commits a crime of aggression commits an offence and is liable on conviction to life imprisonment. (2) For the purpose of this section, ‘crime of aggression’ is an act specified in Article 8 bis of the Statute and includes any other act which at the time and in the place of its commission, constitutes crime of aggression according to customary international law or conventional international law or by virtue of it being criminal according to the general principles of law recognised by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. Section 13 Jurisdiction to try Offences Under Sections 5, 6, 7 or 7A (1) Where an act constituting an offence under Sections 5, 6, 7 or 7A is committed, proceedings may be instituted against that person for that offence in Samoa if (a) the offence is committed in Samoa; (b) the person is a citizen or permanent resident of Samoa; (c) the person has committed the offence against a citizen or permanent resident of Samoa; or (d) the person is, after the commission of the offence present in Samoa. …

16

International Criminal Court Act 2007, as amended by Act 2014, No. 23.

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A.26 Slovenia Slovenian Criminal Code17 Article 13 Applicability of the Criminal Law of the Republic of Slovenia for a Foreign National who Commits a Criminal Offence Abroad (1) ... (2) ... (3) The criminal law of the Republic of Slovenia also applies to anyone who commits any criminal offence abroad which, under relevant international agreement(s) or general legal rules recognised by the international community, is subject to prosecution, regardless of the location where it was committed. Article 103 Aggression (1) An official or other person in a position effectively to exercise control over or to direct the political or military action of the state, who plans, prepares, initiates or executes an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations, shall be sentenced to at least fifteen years in prison. (2) An act of aggression means the use of armed force against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall qualify as an act of aggression: invasion of or an armed attack on the territory, sea, aircrafts, ports or vessels of another state, or any military occupation, temporary or permanent, or any annexation by the use of force of the territory of another state or part thereof; bombardment of or the use of any weapons against the territory of another state; blockade of the ports or coasts of another state; the use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; the action of the Republic of Slovenia in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; the sending of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force of such gravity as to amount to the acts listed above. 17

The revised criminal code of Slovenia entered into force on 14 May 2012.

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Article 105 Association and Incitement to Genocide, Crimes against Humanity or Aggression (1) Whoever establishes a criminal organisation to commit criminal offences under Articles 100 to 103 of this Penal Code shall be sentenced with imprisonment between one and ten years. (2) Any person who becomes a member of the organisation referred to in the previous paragraph shall be sentenced with imprisonment between six months and five years. (3) The perpetrator of the criminal offence under paragraphs 1 or 2 of this Article, who prevents the committing of criminal offences specified in paragraph 1 or declared the offence in due time, shall be sentenced with imprisonment of up to three years, or the sentence may also be remitted. (4) Whoever incites or instigates to directly commit the criminal offences under Articles 100 to 103 of this Penal Code shall be sentenced with imprisonment between six months and five years.

A.27 Tajikistan Tajikistani Criminal Code Article 15 Applicability of the Criminal Law in Relation to Persons who have Committed a Crime Outside Borders of the Republic of Tajikistan (1) … (2) Foreign citizens and stateless persons who do not reside permanently in the Republic of Tajikistan are subject to liability under this Code for crimes committed outside its borders in the following cases: (a) if they have committed a crime stipulated by the norms of international law, recognized by the Republic of Tajikistan or interstate treaties and agreements. Article 395 Aggressive War (1) Planning or preparation of an aggressive war is punishable by imprisonment for twelve to twenty years with confiscation of property. (2) Unleashing or conducting an aggressive war is punishable by imprisonment for fifteen to twenty years with the simultaneous confiscation of property or the death penalty.

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A.28 Timor-Leste Timorese Criminal Code Article 8. Crimes Committed Outside National Territory Except as otherwise provided in treaties and conventions, Timorese criminal law is applicable to acts committed outside of the national territory of Timor-Leste in the following cases: (a) They constitute crimes provided for in articles 196 to 206, 229 to 242 and 307 to 313; (b) They constitute crimes described in articles 123 to 135, 161 to 169 and 175 to 178, as long as the perpetrator is found in Timor-Leste and cannot be extradited or a decision has been made not to do so; (c) They are committed against Timorese nationals, so long as the perpetrator normally lives and is found in Timor-Leste; (d) They are committed by Timorese or foreigners against Timorese nationals, so long as the perpetrator is found in Timor-Leste, the acts are equally punishable by the legislation of the place in which the acts were committed and they constitute a crime which allows for extradition and it cannot, in the particular case, be granted; (e) They refer to crimes that the Timorese State has an obligation to try pursuant to any international convention or treaty. Article 134 Incitement to War (1) Any person who, by whatever means, publicly and repeatedly, incites hatred against a race, people or nation, with the intention to provoke war or prevent peaceful fellowship among different races, peoples or nations, is punishable with two to five years’ imprisonment. (2) Any person who induces or enlists Timorese or foreign nationals to, in the service of a foreign group or power, wage war against a State or overthrow the legitimate Government of another State through violent means, is punishable with five to fifteen years’ imprisonment.

A.29 Ukraine Ukrainian Criminal Code Article 436 Propaganda of War Public calls to an aggressive war or an armed conflict, and also making of materials with calls to any such actions for distribution purposes or distribution of such materials—shall be punishable by correctional labor for a term up to two years, or arrest for a term up to six months, or imprisonment for a term up to three years.

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Article 437 Planning, Preparation and Waging of an Aggressive War (1) Planning, preparation or waging of an aggressive war or armed conflict, or conspiring for any such purposes—shall be punishable by imprisonment for a term of seven to twelve years. (2) Conducting an aggressive war or aggressive military operations—shall be punishable by imprisonment for a term of ten to fifteen years.

A.30 Uzbekistan Uzbekistani Criminal Code Article 12 Application of Criminal Code in Respect of Persons Who Committed Crimes Outside Uzbekistan … Foreign nationals, as well as stateless persons, not permanently residing in Uzbekistan, for crimes committed outside its territory, shall be liable under this code if otherwise is envisaged by international treaties or agreements. Article 151 Aggression Planning or preparation of aggressive war or engagement in conspiracy in order to execute the said actions—shall be punished with imprisonment from ten to fifteen years. (As amended by Law of 29.08.2001.) The commencement or conduct of aggressive war – shall be punished with imprisonment from fifteen to twenty years, or capital punishment. (As amended by Law of 29.08.2001.)

A.31 Vietnam Vietnamese Criminal Code Article 6 Applicability of the Criminal Code on Criminal Offenses Outside the Territory of the Socialist Republic of Vietnam … (1) Any foreigner or foreign corporate legal entity that commit a criminal offence outside the territory of Socialist Republic of Vietnam shall face criminal prosecution as prescribed by this Code if such offence infringes the lawful rights and

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interests of Vietnamese citizens or interest of Socialist Republic of Vietnam or under an international agreement to which Vietnam is a signatory. Article 421 Undermining Peace, Provoking Aggressive Wars (1) Any person who advocates or provokes a war of aggression or prepares, carries out, or participates in a war of aggression against the independence, sovereignty and territorial integrity of a nation or sovereign territory shall face a penalty of 12 - 20 years’ imprisonment, life imprisonment, or death. (2) This offence is committed under pressure or order given by superior officers, the offender shall face a penalty of 10 - 20 years’ imprisonment.

Index

A Activation decision, 235, 236 Ad hoc acceptance, 217, 218, 230, 233, 252 A fortiori obligation, 26, 50 Aggressive war, 6, 12, 160, 163, 174–179, 189, 191, 198, 199 Aggressor State jurisdiction, 331, 332, 337, 373, 411, 417, 418 Animus aggressionis, 178–180, 198 Article 121(5) of the ICC Statute, 223, 225, 235–241, 245–247, 249, 250, 253 Article 15bis(4) of the ICC Statute, 210, 223, 227–229, 236, 238–240, 242–246, 249, 250, 252, 253 Article 5(2) of the ICC Statute, 213, 221, 239–241, 246–250 Assembly of States Parties, 208–210, 212, 217, 221, 224–226, 235–242, 244 Aut dedere aut iudicare, 68

B Bankovi´c, 56, 61, 62, 64, 65 Behavioral economics, 210, 222, 226–229, 235, 251 Blanket references, 264, 274–281, 312 Blaškic judgment, 424, 453 Bloodless invasion, 131–133

C Camp consent, 225, 240 Camp protection, 224, 240 Coercive potential, 41–45, 47, 89 Coercive potential of complementarity, 473 Collective intent, 7, 179, 292, 293, 297, 298

Collective interests, 113, 120–122, 135, 136, 148, 149 Combatants’ privilege, 160, 168–172, 199, 475 Complete implementation, 264, 268, 269, 271, 311, 476 Compliance, 18–23, 26, 29, 33, 40–42, 47, 49, 50, 53–56, 63, 66, 87–90, 474 Conditions for the exercise of jurisdiction, 225, 235, 236, 246, 248, 249, 253 Consent, 209–217, 219–222, 224–226, 229–235, 237–240, 242, 245, 249–254, 476, 478, 480 Constitutional law, 18, 24, 30–32, 50, 51, 89, 90, 473 Constitutional obligation to protect, 31, 51 Contextual assessment of State practice and opinio iuris, 347 Core wrong, 106–112, 129, 131, 138–140, 143, 144, 147–149, 474, 476 Countermeasures, 381–383, 385 Crime against humanity of “other inhumane acts”, 191, 192, 475 Crime against peace, 6, 110, 115, 118, 119, 148 Crime of aggression, 1–14 Crimes under international law, 1, 3, 5, 6, 10, 12, 343, 347, 367, 372, 376, 379, 382–386, 405, 421–423, 425, 426, 428–430, 432–434, 446, 447, 449, 450, 452–457, 462 Criminal adjudication, 210–212, 220, 251, 253 Customary international law, 18–20, 32, 36, 66–68, 71–73, 75–80, 88, 90, 322, 327, 328, 330, 344, 347, 348,

© T.M.C. ASSER PRESS and the author 2023 A. Hartig, Making Aggression a Crime Under Domestic Law, International Criminal Justice Series 32, https://doi.org/10.1007/978-94-6265-591-1

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Index 350–352, 355, 357, 358, 362, 368, 370, 372–374, 376, 382, 404, 408, 409, 411, 413, 416, 418, 420, 421, 423, 424, 427, 428, 433–436, 441–449, 454, 455, 461, 474, 479

D Declaration on the right to peace, 58, 59, 70 Deductive reasoning, 88, 322, 338, 339, 341, 347, 351, 352, 375, 376, 386–388, 404, 410, 413, 427, 428, 447, 449, 450, 455–457, 462, 463, 478, 479 Definition of peace, 115, 119 Domestic implementation, 1, 4–13, 263, 265, 267–272, 274, 281–283, 286–289, 291, 292, 301, 305, 307, 310 Dynamic reference, 275, 278, 280

E Effect principle, 333–335 Effet utile, 55, 64, 86, 87, 382, 383, 451, 452 Entry into force, 212, 223, 231, 235, 236, 239, 241 Erga omnes obligation, 376, 379, 380, 382, 383 Excessive attack, 160, 182–185, 188–191, 197–199 Excessive implementation, 327 Extraterritorial jurisdiction, 61, 63, 65, 329–331, 342, 443, 444, 452, 454, 457

F Functional immunity, 407, 408, 419–425, 427–441, 443–457, 461–463, 479 Fundamental rights, 18, 19, 24, 25, 29–32, 51, 89, 90

G General Comment no. 36, 55, 56, 64, 65 Genuine link approach, 326 German proposal, 214, 215, 219 Gravity qualifier, 129, 133, 136, 137, 149, 163, 169, 171, 180, 184, 194 Grotian moment, 350–352, 355, 374, 436, 448

H Hard law, 22, 23 Humanitarian intervention, 127 Humanization of international law, 106, 120–125, 133, 136 Humanized international law, 480 Humanized sovereignty, 125 Human rights law, 29, 48–57, 60–62, 64, 69, 70, 75, 474, 480 Human rights relevance of aggression, 474 Human right to life, 54, 60, 65, 73, 74, 89 Human right to peace, 57, 58, 60, 65, 73, 74

I Impact model of extraterritorial jurisdiction, 63 Implementation by copying, 263, 264, 268, 273, 279, 284, 311 Implementation by reference, 263, 264, 273, 274, 276–278, 280, 281, 311, 312, 477 Implied obligation to criminalize aggression, 33, 34, 40 Incitement to war, 173–176, 198 Individual conduct, 108, 304–308, 310, 311 Individual interests, 106, 107, 112, 119–122, 125, 128–131, 133–140, 143, 144, 147–149, 474, 475, 478 Inductive reasoning, 75, 357, 436 International adjudication, 210–212, 251, 253 International element, 107, 108, 111 International humanitarian law, 29, 54–57, 72, 73, 81, 123, 125, 130, 131, 133–137, 139, 140, 143, 145, 147, 148, 163, 168, 170–172, 182–184, 187–189, 199, 295, 303, 304 International Military Tribunal at Nuremberg, 118, 119, 132, 175, 178, 180, 322, 352, 353, 373–376, 384, 386, 387, 433, 435, 453, 455, 456 International Military Tribunal for the Far East, 435, 448 International treaty law, 18, 19, 69, 82–84, 380, 381, 451, 452, 455 Irrelevance of official position, 429, 430, 433–435, 438, 439, 445, 446, 448, 457 Ius ad bellum, 5, 9, 106, 120, 140–142, 145, 147–149, 160, 164, 169, 171, 172, 181, 182, 185–191, 193, 195, 197, 199, 474, 475, 480

Index Ius cogens, 18, 19, 71–73, 76–78, 80–88, 90, 376, 377, 379–383, 385, 449–452, 456 Ius in bello, 10, 117, 139, 172, 185–188, 190

J Jurisdiction to adjudicate, 324, 332, 353, 389, 409, 410, 413 Jurisdiction to enforce, 324 Jurisdiction to prescribe, 323, 324, 332, 334, 353, 376, 387, 409, 410, 413

K Kampala Amendments, 6–8, 13, 208, 223, 225, 226, 230, 231, 233–236, 238, 240–243, 245, 246, 250–254 Kampala Conference, 6, 11, 209, 217, 221, 223, 235, 238, 253 Korean proposal, 214, 219

L Leadership circle, 474, 475 Leadership crime, 7, 9, 300, 303 Legislative Pinochet effect, 45–47 List of acts of aggression, 283–286, 309–311 Locus delicti of the crime of aggression, 334 Lotus case, 323, 325, 327, 331, 342, 370 Low-cost defendants, 349, 388, 389

M Manifest threshold, 109, 125, 127–129, 133, 136, 137, 143, 149, 163, 179, 194, 198, 264, 270, 288–296, 298, 309–312 Minimalist approach, 161, 162 Modified implementation, 264, 268, 269, 273, 278, 281–285, 288, 293, 300, 304, 307, 309–312, 477 Monetary Gold doctrine, 404, 405, 408, 457–461, 478, 479 Monopoly of the UN Security Council, 222, 224, 234, 250, 251 Mother of all crimes, 130, 180, 199, 475

N Nanjing Tribunal, 437, 438

509 Nationality Principle, 322, 328, 329, 331, 332, 336–338, 341, 387, 477 Nationals of non-State Parties, 215 National State, 44, 73–75, 90, 210, 212–215, 218–221, 223, 229, 235, 240, 250, 253, 254, 342, 384 Negative obligation, 51–53, 62, 63 New York City resolution, 235, 250 Non-ratifying States Parties, 233, 236, 237, 243, 244, 246, 250, 252–254 Non-States Parties, 208, 215–217, 222, 226, 229–233, 237, 239, 244, 246, 250–252, 254 Normative gaps, 160–165, 167, 175, 178–180, 197–199 Nullum crimen, 42, 53, 67, 68, 86, 270

O Obligation and compliance, 20 Obligation to criminalize, 18, 20, 21, 24–34, 36, 38–40, 46, 50–53, 57, 58, 60–71, 73–77, 80, 82, 84–90, 473, 474, 480 Obligation to prosecute, 43, 45, 51–53, 60, 67–71, 73–76, 78, 82, 85, 87, 88, 90, 474 Obligation to prosecute or extradite, 70, 71, 76–78, 85, 86 1996 Draft Code of Crimes, 372, 405, 407, 410–412, 417, 418, 446, 447 Operationalization of domestic implementation, 322 Opt-in system, 227, 235, 237, 238, 240, 241 Opt-out system, 222, 225–230, 235, 240–242, 244, 245, 253 Ordinary criminal offenses, 42, 67, 75, 84, 90, 160, 162, 163, 167–169, 171, 172, 197–199, 475, 480 Over-inclusive implementation, 282, 286, 300, 311, 312

P Pacifist constitutional provisions, 28 Par in parem non habet imperium, 404, 405, 408, 410–418, 424, 447, 461 Particularities of the crime of aggression, 1, 9 Passive consent, 224, 226 Passive personality principle, 322, 328, 331, 341, 342, 387, 478

510 Permissive rule, 322, 323, 326–330, 338, 347, 353, 355, 363, 364, 374, 386, 387, 477, 478 Personale Rechtsgutslehre, 120–122, 136 Personal immunity, 418–421, 425, 446, 461, 462, 479 Pinochet case, 367, 368, 373, 375, 386, 436, 443 Piracy analogy, 373, 376, 385 Positive obligation, 30, 51, 53, 62 Preamble of the ICC Statute, 33, 34, 47, 66, 68, 70, 75, 370, 371, 375, 377, 386 Preliminary offenses, 173, 198 Presumption against the existence of a conflict with international law, 328, 363 Presumption of congruency between prescriptive and adjudicative jurisdiction, 408, 409 Principle-based reasoning, 76, 374–376, 379, 385, 449 Principle of complementarity, 18, 32–34, 36–41, 46, 47, 89, 162, 208, 209, 254, 265, 266, 286, 473, 476 Principle of legality, 164, 165, 172, 263, 267, 269–274, 276–279, 281, 284–286, 289, 290, 292, 293, 296, 298, 307, 310, 312, 477 Principle of par in parem non habet imperium, 478, 479 Principle of proportionality, 182–185, 189, 190, 199 Principle of representation, 345, 346, 358–361, 364, 366, 367 Principle of treaty-based jurisdiction, 345, 346 Prohibition of the use of force, 19, 25, 28, 29, 32, 78, 80, 109, 111, 116–119, 127, 137, 141, 143, 148, 280, 288–290, 294 Prohibitive rule approach, 325 Propaganda for war, 160, 163, 173–176, 198, 474 Protected legal interests, 106, 107, 109–114, 116, 119, 122, 136, 138, 139, 147, 148, 163, 167, 168, 178, 181, 193, 197 Protective principle, 322, 328–331, 336, 338–341, 387, 478 Putin, 2, 3 R Residual clause, 192, 196, 199

Index Restricted jurisdictional regime of the International Criminal Court, 10, 12, 33, 45, 208, 209, 252–254, 265, 476, 480 Revisionists, 145–149, 300, 303 Rome compromise, 213, 218, 220, 221, 226, 229, 232, 250, 251, 253 Rome Conference, 208–210, 212–216, 218, 220–222, 224, 225, 231, 232, 235, 238, 239, 246–250, 253 Russia, 2, 3

S Self-defense, 338, 339, 341, 387 Semi-deductive approach, 82, 380, 383, 451 Semi-deductive reasoning, 474 Separation of ius ad bellum and ius in bello, 186 Single-Ratification Regime, 213–215, 218, 219, 221–224, 232, 247 Soft consent-based regime, 221, 235, 250, 251 Soft law, 22, 23, 70 State immunity, 424, 428, 436, 445, 451, 452, 456 State practice, 5, 9–11, 13, 66–69, 73–76, 78, 87, 88, 90, 337, 339–342, 345–353, 355, 357, 361–364, 367, 368, 370, 372–376, 380, 386, 413, 414, 416–418, 420, 423, 427–431, 436, 437, 441, 442, 444, 446–449, 451, 457, 461, 462, 474, 478 State responsibility, 18, 29, 82, 84–86, 88, 90, 322, 323, 327, 328, 380, 381, 383, 385, 387, 389, 474, 477 State sovereignty, 112, 114, 119, 123, 125–127, 132, 136, 138, 140, 143, 144, 148, 149, 163–166, 174, 178, 181, 199 Strict consent-based regime, 224, 226, 235, 238, 239, 250, 251, 253 Subsequent practice, 243 Substantive selectivity, 1, 3 Syria, 4

T Targeted static blanket reference, 278, 281, 312 Tatbestandszwang, 276–278, 281 Territoriality, 477, 480 Territorial jurisdiction, 476, 479

Index Territorial scope of the obligation to criminalize, 60 Territorial State, 43, 44, 73–75, 90, 210, 213–215, 217–221, 223, 225, 229, 240, 250, 252, 253, 334, 335, 382, 455 Third States, 322, 331, 335, 340, 348, 357, 379, 381–385, 387, 405–407, 455–457, 462 Threat of judicial intervention, 473 Treason, 160, 163, 165–167, 174, 198 Treaty of Versailles, 431, 432 Type of attack, 106, 107, 111, 138, 147–149, 163, 164, 166, 168, 169, 175, 176, 178, 185, 190, 193, 194, 197

U Ubiquity principle, 333 Ukraine, 1–4, 44, 48, 50, 53, 60, 71, 209, 217, 230, 233, 252, 254, 335, 336, 341–343, 349, 365–368, 374, 375, 378, 382, 383, 386, 388, 389, 410, 414, 415, 420, 423, 440, 445 Under-inclusive implementation, 281, 282, 298

511 Understanding 5, 33, 37–40, 46, 370, 371, 373, 374, 416, 418 UN General Assembly Resolution 3314, 79, 80, 266, 270, 283, 284, 287, 309–311 UN Human Rights Committee, 49, 50, 52, 55–58, 63, 64, 130 Unique character of the crime of aggression, 406, 410 Universal Jurisdiction, 322, 323, 327–329, 331, 335, 341, 342, 344–350, 352–389 UN Security Council, 37, 43–45, 47, 70, 71, 79, 208, 212, 214, 217–219, 221, 224–226, 230–234, 236, 242, 245, 250–254 UN Security Council referral, 217, 231, 234, 251 US proposal, 215, 225, 235

W War crime of excessive attack, 182, 475

Y Yanukovych, 165, 414, 415