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The Blank-Prose Crime of Aggression

Michael J. Glennon

Tufts University - The Fletcher School of Law and Diplomacy

December 21, 2009

Yale Journal of International Law, Vol. 35, p. 71, 2010

A review conference to be convened in May, 2010, will consider an amendment to the treaty establishing the International Criminal Court that would define the crime of aggression and make that crime prosecutable before the Court. The proposed definition would, this article argues, constitute a crime in blank prose, one that would, in its disregard of the international principle of legality and related constitutional prohibitions against vague and retroactive criminal punishment, run afoul of basic international human rights norms and U.S. domestic guarantees of due process. Repeated efforts to define aggression foundered throughout the 20th century for good reason: no consensus existed then or now as to what the term means, at least not at the level of specificity needed to impose individual criminal liability. Prosecution under the ambiguous definition that is proposed would turn upon factors that the law does not delineate, rendering criminal liability unpredictable and undermining the law’s integrity. The definition is, moreover, so broad in its potential reach that, had it been in effect for the last several decades, every U.S. president since John F. Kennedy, hundreds of American legislators and military leaders, as well as innumerable foreign military and political leaders could have been subjected to prosecution. These difficulties would be magnified by including the roulette wheel that is the United Nations Security Council in the decision to prosecute, as some have urged. Excluding the Council, on the other hand, would create an irresolvable conflict with the Charter. That the United States is not a party to the treaty does not render all this academic: it is possible that U.S. military and political leaders could still be prosecuted for the crime of aggression even if the United States continues to refuse to join.

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Date posted: December 22, 2009 ; Last revised: January 25, 2010

Suggested Citation

Glennon, Michael J., The Blank-Prose Crime of Aggression (December 21, 2009). Yale Journal of International Law, Vol. 35, p. 71, 2010. Available at SSRN: https://ssrn.com/abstract=1526754

Contact Information

Michael J. Glennon (Contact Author)
Tufts University - The Fletcher School of Law and Diplomacy ( email )
Medford, MA 02155
United States
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