Criminalizing Force: Resolving the Threshold Question for the Crime of Aggression in the Context of Modern Conflict

Abstract:     
The crime of aggression will soon become reality when the International Criminal Court adopts an operational definition to the Rome Statute in 2010. Criminalizing force in this manner will add to the body of law regulating the initiation of armed force - jus ad bellum. Regime elites and policy makers must ask which applications of force will fall within the jurisdictional parameters of this new offense. Will it apply to humanitarian intervention? Will the Prosecutor initiate an investigation into actions taken to combat terrorism‘ These issues are resolved by answering the threshold question for the crime of aggression.

The draft definition, Article 8 bis, provides that only manifest violations of the U.N. Charter will cross the threshold of criminal aggression. This requires a two part analysis. Initially, one must determine whether the underlying armed attack is inconsistent with the U.N. Charter, and, if so, whether this violation is of the character, gravity, and scale of a manifest violation. Breaking from the anachronistic paradigms of conflicts involving two States, this analysis must be put in the context of modern conflict.

Applying the threshold analysis to examples of humanitarian intervention and actions to combat terrorism, specifically pre-emptive self-defense and targeting non-State actors, it becomes clear that borderline cases will be excluded from the Court’s jurisdiction. In determining the magnitude of State acts, the mental state of the architects of military force will likely prove dispositive. This article looks beyond whether a particular act is lawful under the U.N. Charter and provides an analytical framework that will guide decision-makers when contemplating the use of force, assist the Court in punishing and preventing criminal aggression, and allow the Prosecutor the discretion required to pursue only the most serious violations of international concern.

Keywords: International Criminal Law, Aggression, ICC, Rome Statute, Humanitarian Intervention, Terrorism, Self-Defense

Working Paper Series