11 de noviembre de 2009
The claim defended in this essay is that the International Criminal Court (hereinafter the “ICC”) has at its disposal persuasive arguments for prosecuting and sentencing persons tried under the charge of Aggression of article 5 of the Rome Statute (hereinafter “RS”), without regard to (a) the provision of paragraph 2, of article 5 (hereinafter “5(2)”) of the RS, and (b) to the Nullum Crimen, Sine Lege principle, consecrated under article 22. Using such arguments should not be seen as a violation of the Nullum Crimen, Sine Lege principle, but rather, as an amendment of such principle, under International Criminal Law common practices.
Human rights advocates around the world have raised throughout the last decades the argument that high public officers are liable before the International Criminal Court for perpetrating crimes of Aggression, without regard to the existence or not of a definition of such crime under the rules of the RS. Those persons have not been successful in giving a satisfactory answer as to the reasons that would grant the ICC with such jurisdiction in such cases different from the procedure of articles 121 and 123, nor to the possibility of convicting such persons without violating the Nullum Crimen, Sine Lege principle.
The contention of this paper is that the ICC needs not wait until the States comply with the procedures described under articles 121 and 123 of the RS, which should apply as provided under 5(2). Plus, it is hereby affirmed that under the present circumstances of evolution of (a) the RS, (b) International Public Law, and (c) the evolution of the ICC as a “normative force”, such tribunal could make a broad interpretation of the RS, assuming the competency in such cases, and sentencing the persons tried in them, in contradiction with the usual practice of civil and common law worldwide.
The difficulties derived from the application (or non application) of the Nullum Crimen, Sine Lege principle for the enforcement, prosecution and punishment of crimes, under western – common or civil – law are well known. The defendants and defense attorneys in the cases tried by the Nuremberg and Tokyo tribunals insisted fiercely in the impossibility of prosecuting and convicting someone for a crime which had not been enacted prior to its execution.
Further, the International Criminal Tribunal for the Former Yugoslavia (hereinafter “ICTY”) and the International Criminal Tribunal for Rwanda (hereinafter “ICTR”), confronted the same problem, plus the additional difficulty derived from the existence and application of the sibling principle of the Nullum Crimen, Sine Lege principle, namely, the Nullum Poena, Sine Lege Stricta et Previa.
The Tokyo and Nuremberg tribunals, however, used the general argument that it could not be possible to acquit the defendants under the Nullum Crimen, Sine Lege principle, because that would equal to accept that the defendants ignored the “wrong” implicit in their actions. This trickery, however, has been strongly criticized by the positivist school of thought. The arguments used by the Tokyo and Nuremberg tribunals, however, have been used also by the ICTY and the ICTR in their decisions, thus giving a step forward toward the birth of a universal practice of international criminal law, based to a certain extent on natural law.
The two main positions deriving from this debate evince the difficulties which the ICC would have to overcome, pursuant to the crime of Aggression. The competence of the ICC to judge cases involving the crime of Aggression depends, pursuant to 5(2), on the approval of the States of a definition of the crime, and on their approval of the elements of the crime.
My argument is that the ICC under a strict interpretation of the RS would surely need to wait until the approval of the States abovementioned. There are arguments enough, however, to assess that it could rule cases related to such crimes in any moment. The basis for this idea is that the Nullum Crimen, Sine Lege principle was intended originally, to impede arbitrary prosecutions, violations of due process, and unfair and unjust convictions for conducts not previously considered as crimes by a particular sovereign, but the concept of Aggression and its elements is well known by the international community several decades ago. Thus, the mere enunciation of article 5 of the jurisdiction of the ICC on crimes of Aggression should be sufficient to deter persons to commit such crime, pursuant to what I could call the hard core of Aggression.
The concept of Aggression was included in several provisions of the Charter of the United Nations, such as articles 1 and 39. Plus, the hard core of Aggression as a conduct which would violate International Public Law was included under Resolution 3314 of the United Nations, issued in 1974. 
In addition to the abovementioned, the Special Working Group on the Crime of Aggression (hereinafter “SWGCA”) which was created since 2002, has been drafting the Elements of the crime of Aggression ever since, trying to take participating parties to approve the draft submitted for the review of the group since 2002.
Notwithstanding the procedural and substantive difficulties that have been raised by different State members of the working group, it is feasible to say that the definition of the crime of Aggression proposed and provisionally agreed by the parties is substantively equal to the definition of Aggression contained under Resolution 3314. Thus, the normative value of the negotiations, pursuant to Resolution 3314, article 5 of the RS, the provisions of the Charter of the United Nations, and the legacy of the last decades of International Public and Criminal Law, implies that the ICC could interpret that the Nullum Crimen, Sine Lege, is relative to the feasibility that a specific State had to acknowledge that the action that was being committed violated the provision of article 5 of the Rome Statute.
This is very important, taking into account the obstructive practices in which States are incurring in order to delay the enforceability of the crime of Aggression over its public officers. The obvious question that could be raised here is: Could someone be charged and convicted by the ICC, notwithstanding the fact that the crime has not been yet defined? And my answer would be “Yes, as the hard core elements of the relevant conduct have already been defined in several treaties, declarations, and agreements, agreed upon by the member states”. This answer can also be supported under two additional arguments.
First, I affirm that the RS and the crime of Aggression need to be looked under the scope of the Pacta Sunt Servanda principle and International Public Law. By signing the RS, States have complied to surrender to the jurisdiction of the ICC and to make its best efforts to contribute in defining the crimes of article 5. Doing counter wise would be against International Public Law, and would be grave evidence that the State is intending not to admit the jurisdiction of the ICC for crimes of Aggression.
Second, the customary practice of international war and crime tribunals is to admit a certain relativity of the Nullum Crimen, Sine Lege Previa, provided that the crime perpetrated is so obvious to be a crime, that no Lege Previa would be needed to prove the obvious. That practice, even though questionable from a positivist standpoint, has a very strong normative power pursuant to peace stability and in connection to atrocities and crimes which may trigger war between States.
If we take a glance to the Elements of the crime of Aggression submitted for the discussion of the Working Group, it is apparent that it is simply a repetition of the elements contained under Resolution 3314. Thus, high public officers could not justifiably, from a criminal standpoint, perpetrate a crime of Aggression, as they already knew the normative content of the crime of Aggression.
In support of this idea, the ICC could also invoke article 18 of the Vienna Convention: “Pursuant to article 18 of the Vienna Convention on the Law of Treaties of 1969, States are obliged not to defeat the purpose of the treaty prior to its entry into force”. The lack of use of the crime of Aggression, under the Nulla Poena, Sine Lege argument, thus would depart from an interpretation that would contradict the basis of a very strongly developed tradition of International Public Law.
Finally, the ICC could argue that its competency is derived directly from the axiological function of the crime of Aggression pursuant to the fulfillment of the function of United Nations and the ICC, as organizations whose main aim is the safeguard of peace and human rights. This interpretation would be feasible under article 21 of the United Nations Charter. Moreover, this argument is plausible under the consideration that the Charter is the constitutional framework of the International Community, and that the legal instruments which derive from it shall be interpreted in furtherance of the goals and aims of the former.
While I am aware of the enormous task that implies defending in a coherent and solid manner the thesis fostered under this essay I believe that I have portrayed some interesting elements that would allow an extension of the competency of the ICC to cases of Aggression, without the need of further steps by sovereign national States, which, under my point of view, are not really committed to the adoption of a definition of such crime, whereas it attempts against the idea of sovereignty and of impunity for crimes of Aggression.
ENDO, Guillaume. Nullum Crimen, Nullum Poena Sine Lege. Principle and the ICTY and ICTR. P. 206.SCHABAS, William A. Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals. 2000. 11EJIL 522.HART, H. L. A. The Concept of Law. Clarendon Law Series. 1997.Report of the SWGCA, dated 20 February 2009 (ICCASP/7/SWGCA/2)WILMSHURST, Elizabeth. Fellow of the Royal Institute of International Affairs at Chatham House,Professor of International Law at University College London, United Kingdom. http://untreaty.un.org/cod/avl/ha/da/da.htmlCharter of the United Nations. 1945.Rome Statute.Elements of Crimes of the Rome Statute.Resolution 3314 of the United Nations. 1974.http://books.google.com/books?id=SPhGSg_5Go0C&pg=PA283&lpg=PA283&dq=Perverse+Effects+of+Nulla+Poena+Principle&source=bl&ots=rFXmR_8lvA&sig=WqfC-i9-IZYIqkt0CH5x1UhOn08&hl=en&ei=WbzSSq6QCtC0lAfUzaWKAw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CDUQ6AEwBw#v=onepage&q=Perverse%20Effects%20of%20Nulla%20Poena%20Principle&f=false ENDO, Guillaume. Nullum Crimen, Nullum Poena Sine Lege. Principle and the ICTY and ICTR. P. 206. SCHABAS, William A. Perverse Effects of the Nulla Poena Principle: National Practice and the Ad Hoc Tribunals. 2000. 11EJIL 522. HART, H. L. A. The Concept of Law. Clarendon Law Series. 1997. Charter of the United Nations. Article 1. The Purposes of the United National are: 1) To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace (…) Article 39. “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Resolution 3314 of the United Nations. Articles 3 and 4. “Article 1. Aggression is the use of force by one State against the sovereignty, territorial integrity, or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.(…) Article 3. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (…) b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.Article 5. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.(…)”
 Paragraph 42 of the Report of the SWGCA, dated 20 February 2009 (ICCASP/7/SWGCA/2)WILMSHURST, Elizabeth. Fellow of the Royal Institute of International Affairs at Chatham House,Professor of International Law at University College London, United Kingdom. “The Definition has rarely if ever been used for that purpose. It has however been referred to by the International Court of Justice (ICJ) in its consideration of unlawful use of force by States. The ICJ has decided that the provision in article 3, paragraph (g), of the Definition reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)”http://untreaty.un.org/cod/avl/ha/da/da.html
 “Elements. 1: The perpetrator was in a position effectively to exercise control over or to direct the political or military action of the State which committed an act of aggression as defined in element 5 of these Elements. 2: The perpetrator was knowingly in that position. 3: The perpetrator ordered or participated actively in the planning, preparation or execution of the act of aggression. 4: The perpetrator committed element 3 with intent and knowledge. 5: An “act of aggression”, that is to say, an act referred to in United Nations. General Assembly resolution 3314 (XXIX) of 14 December 1974, was committed by a State.6: The perpetrator knew that the actions of the State amounted to an act of aggression. 7: The act of aggression, by its character, gravity and scale, constituted a flagrant violation of the Charter of the United Nations, 8: The perpetrator had intent and knowledge with respect to element 7.” http://books.google.com/books?id=SPhGSg_5Go0C&pg=PA283&lpg=PA283&dq=Perverse+Effects+of+Nulla+Poena+Principle&source=bl&ots=rFXmR_8lvA&sig=WqfC-i9-IZYIqkt0CH5x1UhOn08&hl=en&ei=WbzSSq6QCtC0lAfUzaWKAw&sa=X&oi=book_result&ct=result&resnum=8&ved=0CDUQ6AEwBw#v=onepage&q=Perverse%20Effects%20of%20Nulla%20Poena%20Principle&f=false