Judging Aggression

89 Pages Posted: 24 May 2011 Last revised: 16 Sep 2012

Date Written: April 1, 2011


The definition of the crime of aggression and the peace versus justice dilemma are two of the foremost controversies within the field of international criminal law. When these controversies collide, the judges of the International Criminal Court (ICC) will be expected to mediate the impact.

In June 2010, in Kampala, the Assembly of States Parties (ASP) to the ICC successfully negotiated a consensus definition of the crime of aggression as well as jurisdictional conditions and a mechanism for the amendments to the ICC Statute to enter into force. These amendments will give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating or executing illegal wars. The elements of an illegal war and the doctrinal link that will allow a judge to attribute it to an individual are circumscribed in the definition of the crime. The crime of aggression was not the only issue of significance that was discussed in Kampala. Delegations also participated in a stocktaking exercise where they considered the impact of the ICC Statute to date. One of the questions given priority in these discussions was how the goal of peace should figure into the work of the ICC.

The so-called peace versus justice dilemma has complicated a number of the ICC’s ongoing cases, notably, in the Democratic Republic of Congo (DRC), Central African Republic (CAR), Darfur, Kenya and Uganda. The peace versus justice dilemma has given rise to intense debate concerning the proper role of the ICC. The commentary has not been limited to observers of the ICC; arguments have been launched from within the court itself. Stakeholders have invoked a familiar pattern of the Rome Statute’s provisions to justify competing courses of action, among them, prosecution at all costs, deferral of cases, substitution of local for international justice, withdrawal of arrest warrants, and amnesty (in various forms).

Though scholars have clarified the contours of the issue, the peace versus justice question remains unresolved. What the diplomatic delegations failed to do in Kampala was to link the two fundamental issues they wrestled with: the crime of aggression and the peace versus justice dilemma. Because the problem will inevitably arise in the context of an aggression case, this article undertakes to establish the missing link between the crime and the dilemma and propose ways an ICC judge could mediate between the two. If the ICC’s practice to date is any indication, the peace versus justice dilemma will weigh heavily on the minds of the ICC judges as they mete out justice against political or military leaders accused of aggression. The crime of aggression was drafted with the specific purpose of deterring threats to the peace; conceivably, the goal of peace will figure prominently in its interpretation. Furthermore, where the Rome Statute as a whole contains quite a few gaps, ambiguities, and contradictions that leave room for judicial interpretation, the crime of aggression, in leaving to judges the resolution of longstanding negotiation debates, contains still more. It is largely within these zones of discretion that the peace versus justice debate can be expected to unfold. Because the criminalization of aggression requires the ICC to intervene in the domain of fundamental national security, an area of discretion warily guarded by states, the stakes will be especially high. Judicial interpretation of the crime of aggression will not only determine the outcome of particular cases, it will shape the international legal order.

This Article argues that the ICC judges should attempt to promote peace as they do justice. It eschews narrow interpretive theories and proposes instead that the ICC judges take a variety of contextual factors into account as they interpret the law. Judging Aggression uses a participant’s knowledge of the negotiations over the definition of the crime of aggression as the basis for a doctrinal analysis that reveals the gaps, ambiguities and contradictions that leave room for judicial interpretation. Building on the literature on the peace versus justice dilemma to date, it evaluates a range of ways that well-intentioned international judges might attempt in their decisions to do justice while promoting peace in the context of an aggression case. The way that the ICC judges address the challenges they encounter as they adjudicate what the Nuremberg Tribunal called “the supreme international crime,” will serve, whether they succeed or fail in harmonizing the demands of justice and peace, as a lesson on the exercise of the judicial function.

Keywords: International Criminal Court (ICC), Crime of Aggression, Peace versus Justice, Self-Defense, Armed Attack, Humanitarian Intervention, Caroline Test

Suggested Citation

Weisbord, Noah, Judging Aggression (April 1, 2011). Columbia Journal of Transnational Law, Vol. 50, No. 1, 2011, Florida International University Legal Studies Research Paper No. 11-15, Available at SSRN: https://ssrn.com/abstract=1846916

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