A Shield for the Knights of Humanity: The ICC Should Adopt a Humanitarian Necessity Defense to the Crime of Aggression

University of Pennsylvania Journal of International Law, Dec 2008

By Christopher P. DeNicola, Published on 12/01/08

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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 - 1. 2. 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)


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Christopher P. DeNicola. A Shield for the Knights of Humanity: The ICC Should Adopt a Humanitarian Necessity Defense to the Crime of Aggression, University of Pennsylvania Journal of International Law, 2008, pp. 641, Volume 30, Issue 2,