A Shield for the Knights of Humanity: The ICC Should Adopt a Humanitarian Necessity Defense to the Crime of Aggression
A SHIELD FOR THE ?KNIGHTS OF HUMANITY?: THE ICC SHOULD ADOPT A HUMANITARIAN NECESSITY DEFENSE TO THE CRIME OF AGGRESSION
CHRISTOPHER P. DENICOLA 0
TABLE OF CONTENTS
0 J.D. Candidate , 2009 , University of Pennsylvania Law School; B.A. Political Science , 2005 , Williams College. I would like to thank Ambassador J. Clint Williamson and Professor William W. Burke-White for their inspiration and guidance , USA
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1. INTRODUCTION
Imagine the following scenario: former President Bill Clinton
sits in a damp cell in The Hague. He shifts uneasily on his
mattress, hearing loud footsteps at the end of his cell block. Two
armed guards approach and inform him that he must proceed to
the courtroom. After shuffling out of his cell, the guards lock the
former president in handcuffs and lead him to the Pre-Trial
Chamber. Upon entering, the judge states that this hearing of the
International Criminal Court (?ICC?) has convened to inform the
defendant of the charge against him: one count of aggression. The
Prosecutor alleges that Clinton committed the crime of aggression
because he directed NATO?s 1999 bombing of Serbia without
grounds of self-defense or authorization from the U.N. Security
Council.1 Unfortunately for the former president, he cannot easily
raise a humanitarian necessity defense, which might legally justify
his campaign against ethnic cleansing, because no such defense
currently exists in the Court?s statute.
In 1998, the United Nations promulgated the Rome Statute of
the ICC, declaring that the Court would have jurisdiction over the
crime of aggression.2 Because the Rome Statute did not define the
crime,3 the ICC cannot prosecute anyone for aggression until the
Statute?s state parties agree on a definition.4 Currently, an ICC
working group is developing a draft definition of the crime that it
will submit to member states at their first Review Conference of the
Rome Statute in 2010.5 One category of military force that will
probably fall within the working group?s definition of aggression is
humanitarian intervention lacking U.N. Security Council
1 For the sake of this hypothetical, we will assume that the ICC has
jurisdiction over NATO?s 1999 action. In fact, it does not because the Court only
has jurisdiction over crimes that occurred after the Rome Statute of the
International Criminal Court, which established the Court, entered into force in
2002. Rome Statute of the International Criminal Court art. 11, para. 1, opened for
signature July 17, 1998, 2187 U.N.T.S. 90, 37 I.L.M. 1002 (entered into force July 1,
2002), available at http://www.icc-cpi.int/library/about/officialjournal
/Rome_Statute_English.pdf.
2 International Criminal Court [ICC], Establishment of the Court,
http://www.icc-cpi.int/about/ataglance/establishment.html (last visited Nov.
25, 2008); Rome Statute of the International Criminal Court, supra note 1, art. 5,
paras. 1(d), 2.
3 Rome Statute of the International Criminal Court, supra note 1, art. 5, paras.
1(d), 2. The Rome Statute of the International Criminal Court states that ?[t]he
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.? Id., art. 5, para 2. It adds that ?[s]uch a provision shall be consistent
with the relevant provisions of the Charter of the United Nations.? Id.
4 COAL. FOR THE INT?L CRIM. CT. [CICC], THE ICC AND THE CRIME OF
AGGRESSION, (May 2008) http://www.iccnow.org/documents/CICCFS_Crime
_of_Aggression_Factsheet_FINAL_eng_1May07.pdf (last visited Nov. 28, 2008).
5 International Criminal Court-Assembly of States Parties [ICC-ASP],
ICCASP Res. 1/1 (Sept. 9, 2002). Originally scheduled for 2009, the Conference
probably will not occur until early 2010. ICC-ASP, Informal-Intersessional
Meeting of the Special Working Group on the Crime of Aggression,
ICCASP/6/SWGCA/INF.1, paras. 59?65, (June 11?14, 2007), http://www.icc-cpi.int
/library/asp/ICC-ASP-6-SWGCA-INF.1_English.pdf.
approval.6 Intense debate exists over whether such interventions
are legal,7 and if the group does not develop a defense for this type
of action, leaders of unauthorized but legitimate humanitarian
interventions like former President Clinton will face convictions for
the crime of aggression at the ICC.8
This Comment argues that the ICC should adopt a
humanitarian necessity defense so individuals who direct
interventions to end atrocities?the ?knights of humanity??will
not fear aggression convictions.9 Section 2 contends that today,
aggression is an international crime for which courts may hold
individuals responsible. Section 3 examines the legal history of
humanitarian intervention and argues that although a right to
intervene likely existed before World War II, the U.N. Charter
outlawed the practice, except when authorized by the Security
Council. Despite this shift, a customary (...truncated)