A Brief Exploration of the Need for a Special International Criminal Tribunal on the Crime of Aggression

Maryland Journal of International Law Volume 38 Issue 1 Article 8 A Brief Exploration of the Need for a Special International Criminal Tribunal on the Crime of Aggression Jennifer Trahan Follow this and additional works at: https://digitalcommons.law.umaryland.edu/mjil Recommended Citation Jennifer Trahan, A Brief Exploration of the Need for a Special International Criminal Tribunal on the Crime of Aggression, 38 Md. J. Int'l L. (2024). Available at: https://digitalcommons.law.umaryland.edu/mjil/vol38/iss1/8 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal of International Law by an authorized editor of DigitalCommons@UM Carey Law. For more information, please contact . 7 TRAHEN (DO NOT DELETE) 11/20/2023 11:20 AM A Brief Exploration of the Need for a Special International Criminal Tribunal on the Crime of Aggression JENNIFER TRAHAN† This reflection piece will address: (1) the historical background of the crime of aggression; (2) the reasons for establishing a special tribunal on the crime of aggression (STCoA) to address the invasion of Ukraine; and (3) some key features of such a proposed tribunal. I. HISTORICAL BACKGROUND Oona Hathaway and Scott Shapiro, in their book The Internationalists,1 trace some of the historical background that led to the development of the crime of aggression. As early as 1917, individuals in the United States were working on the idea of the prohibition of aggressive war (essentially, outlawing war) and debating the even more difficult question of how to enforce such a prohibition.2 A similar motivation was behind the opening of the Peace Palace in 1913 in The Hague, Netherlands: the hope that states would ©2023 Jennifer Trahan † Clinical Professor at NYU’s Center for Global Affairs and Director of the Concentration in International Law and Human Rights. Professor Trahan is also Convenor of the Global Institute for the Prevention of Aggression. Thanks to Erin Lovall and Jenny Fondren for formatting and editing assistance. 1. OONA HATHAWAY & SCOTT SHAPIRO, THE INTERNATIONALISTS: HOW A RADICAL PLAN TO OUTLAW WAR REMADE THE WORLD (2017). 2. Id. at 108. 95 7 TRAHEN (DO NOT DELETE) 96 A BRIEF EXPLORATION OF THE NEED 11/20/2023 11:20 AM [Vol. 38 arbitrate3 and, later, litigate4 their disputes instead of using recourse to force. The US and France took a further important step in renouncing use of force when they concluded, with other states, the KelloggBriand Pact in 1928.5 Of course, that did not prevent the cataclysmic catastrophe of World War II. Yet, it was not until the negotiations of the London Charter that established the International Military Tribunal at Nuremberg6 that the historic decision was made to prosecute “crimes against peace,” which we now term the crime of aggression. Indeed, Counts 1 and 2 of the Indictment7 were devoted to that crime. In fact, contrary to popular perception, aggressive war was the central focus of the Nuremberg prosecutions.8 It was in the Nuremberg Judgment that the crime was deemed: “the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”9 Thus, if there were not the initial aggression, there would be none of the ensuing war crimes or crimes against humanity. One also would have none of the civilian deaths, nor even military fatalities on either side. In this way, the victim base of the crime of aggression is far broader than the victim base of the other core crimes that the International Criminal Court (ICC) prosecutes—genocide, war crimes, 3. Int’l Ct. Just., History, https://www.icj-cij.org/en/history (last visited Feb. 26, 2023). The Permanent Court of Arbitration was established in 1900 and began operating in 1902. Id. 4. Int’l Ct. Just., Permanent Court of International Justice, https://www.icjcij.org/en/pcij (last visited Feb. 26, 2023). The Permanent Court of International Justice was established there in 1922. Id. 5. See generally General Treaty for Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57, available at https://avalon.law.yale.edu/20th_century/kbpact.asp [hereinafter, “Kellogg-Briand Pact”]. See HATHAWAY & SHAPIRO, supra note 1, at 121–30 (on the negotiation of the Pact). 6. Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279 [hereinafter, “London Charter”]. 7. 1 Trials of War Criminals Before Nuremberg Military Tribunals Under Control Council Law No. 10, 1–12 (1946), available at https://www.loc.gov/item/2011525463. 8. See GARY J. BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS, 147–205 (2000). 9. Int’l Mil. Tribunal, Judgment of 1 October 1946, in THE TRIAL OF GERMAN MAJOR WAR CRIMINALS, PROCEEDINGS OF THE INTERNATIONAL MILITARY TRIBUNAL SITTING AT NUREMBERG, GERMANY, PT. 22, at 421 (Aug. 22, 1946 to Oct. 1, 1946). 7 TRAHEN (DO NOT DELETE) 2023] 11/20/2023 11:20 AM A BRIEF EXPLORATION OF THE NEED 97 and crimes against humanity.10 The crime of aggression causes the totality of the harm that ensues. States attempted to reinforce the same prohibition against the use of force in 1945 with Article 2(4) of the UN Charter. 11 Yet, that provision lacks any automatic enforcement.12 The Security Council may be able to utilize its Chapter VII powers in some situations,13 but certainly not when a permanent member of the UN Security Council (which possesses veto power)14 is the aggressor. In any event, there is no accompanying individual criminal responsibility.15 In 1974, the UN General Assembly took another significant step forward in defining aggression in Resolution 3314.16 Importantly, by the 1998 negotiations to develop the ICC’s Rome Statute, the delegates agreed that there would be four crimes within the jurisdiction of the Court.17 However, agreement on the definition and conditions for the exercise of jurisdiction vis-à-vis the crime of aggression was not possible to conclude at Rome.18 These topics went into separate negotiations from 2003–2009, primarily before the Special Working Group on the Crime of Aggression (SWGCA).19 These negotiations culminated in agreement on the definition of the crime; however, what was adopted in 2010 at the ICC Review 10. See Rome Statute of the International Criminal Court, art. 6 (genocide), art. 7 (crimes against humanity), art. 8 (war crimes), 17 July 1998, entry into force July 1, 2002, 2187 U.N.T.S. 90 [hereinafter, “Rome Statute”]. 11. U.N. Charter art. 2(4). It states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Id. Artic (...truncated)