Criminal Responsibility for the Crime of Aggression

Author: Patrycja Grzebyk
Publisher: London; New York; Routledge, 2013. 394p.
Reviewer: Roger S. Clark | November 2014

The 2010 Kampala Review Conference on the Rome Statute of the International Criminal Court completed a task left open when the Statute was agreed upon in 1998 — the definition of the crime of aggression. Aggression had been included in the Statute as one of the four crimes over which the International Criminal Court has competence. That competence could not, however, be “exercised” until, in the words of article 5(2) of the Statute, a “provision” had been adopted “defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” The amendments adopted in Kampala in 2010 will become effective under a complicated formula that requires ratification or acceptance by thirty States Parties to the Statute and a further decision of the parties after 1 January 2017. With Austria’s ratification in July 2014, half the necessary ratifications are now in hand and the acceptance process is continuing apace with representation across the various regional groupings. It seems likely that the necessary thirty will be found by 2016.

Professor Grzebyk’s work, based on her Ph.D. dissertation at the University of Warsaw, is thus a very timely and useful addition to the literature on the subject of the criminality of aggression. It includes some very erudite historical research into the developing illegality of (and state responsibility for) aggression in international law, especially in the period between the two World Wars, and of the development of the principle of individual criminal responsibility for aggression at the end of the 1939-45 War. It also contains a clear analysis of the Kampala material.
Opening the case for the prosecution on the second day of the Nuremberg proceedings in 1945, Justice Robert Jackson uttered these immortal words about the crime against peace, or aggression:

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

With the trial over, this enthusiasm, perhaps never overwhelming in the capitals of the prosecuting nations, waned. None of the four Powers who undertook the Nuremberg Trial showed any enthusiasm in support of efforts at the United Nations in the immediate post-trial years to create a permanent international criminal court, whose jurisdiction would include the crime of aggression. Of the four, the Soviet Union alone, took action under domestic law to make it possible to penalize the crime of aggression. There is no indication, however, that any prosecutions were ever brought concerning the USSR’s subsequent foreign adventures. In the revitalized negotiations on the International Criminal Court in the 1990s, the Permanent Members of the Security Council were not to be found among the ranks of those pressing for the crime of aggression to be within its jurisdiction. That was left to a dogged collection of small powers such as Liechtenstein, Trinidad and Tobago and Samoa (all early ratifiers of the Kampala amendments), and larger ones like Germany and Belgium (both of which ratified the Kampala amendments in 2013) to press the item forward.

It is against this background that Professor Grzebyk writes. Noting her seven chapter headings will give a fair indication of the structure and contents of the material with which she deals: “War as an institution of law,” “The notion of aggression, “The legal basis for criminalising aggression,” “Trials of individuals charged with the crime of aggression,” “Scope of individual responsibility for the crime of aggression,” Procedural difficulties,” and “Impact of aggression trials”.

I found the chapter on trials of individuals especially interesting. It is one of the few efforts to engage in an exhaustive search for precedents of actual trials conducted at the end of the Second World War. It discusses, of course, the Nuremberg and Tokyo trials, but also proceedings before courts in the occupation zones in Germany and trials before national courts. In Germany, the United States conducted several subsequent Nuremberg trials before American military courts, with only a handful of successful aggression prosecutions. The French authorities also conducted a small number of trials. (Unlike the American courts, the French system permitted an appeal and the main conviction was reversed on appeal.) The Supreme National Tribunal in Poland held three trials involving aggression on which Professor Grzebyk throws some light. And, although Professor Grzebyk, mentions only the most significant case, that of Takashi Sakai, the Chinese Military Tribunal in Nanking also held some trials. It is a fairly thin body of precedent, but it is valuable to have it analyzed in one place.

The other chapter that I found quite original was that on the scope of individual responsibility, which brings together, through the eyes of a civil law scholar, considerations on mens rea and actus reus, and the conduct aspects of aggression in its various stages of developmentas well as some thoughts on the “grounds for excluding criminal responsibility owing to lack of guilt.”

Your friendly reviewer represented the Government of Samoa in Rome and in the lengthy subsequent negotiations that led to Kampala. He sees the ICC’s exercise of jurisdiction over the crime of aggression as the logical completion of the vision of Nuremberg, a fulfillment indeed of Jackson’s poisoned chalice image. Professor Grzebyk is not such a true believer. Towards the end of her study she puts as well as it can be put the case for not concluding the present process of empowering the ICC to exercise its jurisdiction over the crime of aggression. A lengthy quotation is in order:

Aggression trials also pose a serious risk to the international criminal justice system which is still only in its infancy. The hard-won respect for international judicial institutions may be lost, and international criminal law may forfeit its logically coherent structure. Aggression is very different from all the other crimes of international law for which individual perpetrators stand trial today. It is a crime committed collectively, yet the principles of assigning responsibility for it aim to eliminate collective responsibility. Furthermore, it is difficult to determine the victims of aggression, and consequently it is almost impossible to view aggression from the victim’s perspective, as is the trend in international criminal law. Aggression can only be committed by top state officials, or individuals with significant power over such officials. Thus, in aggression trials the court faces the challenge of privileges and immunities on the part of the potential perpetrators, who – to make matters worse – may be perceived as having acted in their nation’s honour or a policy the nation supported. Most importantly, however, the responsibility of individuals for aggression is inseparably linked to the state’s responsibility for the same (p. 264).

Personally, I find this argument, which has other adherents, especially among representatives of large powers that are not enthusiastic about the Court, unconvincing. There is no question that prosecuting leaders of state in an international forum is a difficult task – witness the pushback to efforts to prosecute the president of Sudan for genocide and crimes against humanity. But does not that example indicate that all such efforts are fraught, not only aggression? What is more difficult about an aggression prosecution of a head of state than one for genocide? Either way, there is likely to be some state or organizational policy entailed. Indeed, genocide and crime against humanity are typically done “collectively” also. The lone génocidaire inhabits the world of hypotheticals rather than the real world. And is it true that a prosecution for the crime of aggression aims to eliminate collective responsibility? True, the Nuremberg Tribunal delivered itself of the splendid aphorism that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” But the discussion that follows in the Judgment makes it clear that the Tribunal’s rhetoric was not meant to preclude the possibility that there could be both individual and state responsibility arising out of the same incident. Just as “act of State” was no longer a defense for the individual, so was “act of the individual” not a defense for the state. As for victims and their involvement in the criminal process, this whole subject is in its infancy too. I see no reason why, both for purposes of involvement in trials and for purposes of reparation, a victim state or other collectivity of victims cannot be accommodated within the Rome Statute’s open-ended provisions on victim participation. Immunity is, no doubt a problem, especially in prosecutions in third party states on the basis of universal jurisdiction (and Professor Grzebyk is no believer in universal jurisdiction for aggression (p. 219)) but article 27 of the Rome Statute precludes its application before the Court itself. Again, as Sudan suggests, it is no more or less a problem for aggression than for genocide.

But this is to cavil. The work under review is an impressive piece of scholarship by a young academic from whom we are bound to hear more.

Roger S. Clark, Board of Governors Professor, Rutgers University School of Law at Camden