Making Aggression a Crime Under Domestic Law: On the Legislative Implementation of Article 8bis of the ICC Statute (International Criminal Justice Series, 32)

This book offers a comprehensive analysis of the legal questions that arise for the legislative branch when implementing the crime of aggression into domestic law. Despite being the “supreme international crime” that gave birth to international criminal law in Nuremberg, its ICC Statute definition has been incorporated into domestic law by fewer than 20 States. The crime of aggression was also omitted in the rich debate held among German scholars in the early 2000s regarding the legislative implementation of other ICC Statute crimes. The current inability of the International Criminal Court to respond to the Russian aggression towards Ukraine invites the continuation of these academic debates without neglecting the particularities of the crime of aggression. The fundamental issues discussed in this volume include the obligation to criminalize aggression, the core wrong of the crime, the normative gaps under domestic law and the jurisdictional gaps under the ICC Statute. To facilitate the operationalization of domestic implementation, the book explores the technical options for incorporating the definition into domestic law, the geographical ambit of domestic jurisdiction—most notably universal jurisdiction—as well as legal challenges such as immunities. The book is aimed primarily at researchers and States with an interest in the domestic implementation of international criminal law but those already working in the field should also find much of interest contained within it. Dr. Annegret Hartig is Program Director of the Global Institute for the Prevention of Aggression and worked as a researcher at the University of Hamburg where she obtained her doctoral degree in international criminal law. Acknowledgments Contents 1 Introduction 1.1 Relevance of the Topic 1.2 Aim, Structure and Approach of this Book 1.3 Terminology 1.3.1 Crime of Aggression 1.3.2 Domestic Implementation 1.4 The Practice of the Implementers of the Kampala Amendments 1.5 The Particularities of the Crime of Aggression for the Purpose of Implementation 1.5.1 Leadership Crime and Based on a State Act 1.5.2 Restricted Jurisdictional Regime of the International Criminal Court 1.5.3 Limited State Practice 1.6 Overview of the Chapters References 2 An Obligation to Criminalize Aggression Under Domestic Law? 2.1 Introduction 2.1.1 Obligation and Compliance 2.1.2 Hardness and Softness of Law: Binding Form, Precision and Enforcement 2.1.3 Working Definition of “Aggression” 2.2 Domestic Constitutional Law 2.2.1 Hard Legal Obligation Under Constitutional Law to Criminalize Aggression 2.2.2 A Fortiori Obligation from the Constitutional Prohibition of Incitement to War or Propaganda for War 2.2.3 Inference from Other Pacifist Constitutional Provisions 2.2.4 Inference from the Duty to Protect Fundamental Rights 2.2.5 Conclusion to Domestic Constitutional Law 2.3 ICC Statute 2.3.1 No Explicit Legal Obligation to Criminalize 2.3.2 Implied Legal Obligation to Criminalize Due to the Principle of Complementarity? 2.3.3 Coercive Potential of Complementarity Irrespective of an Obligation: The Threat of Judicial Interventions 2.3.4 Conclusion to the ICC Statute 2.4 International Human Rights Law 2.4.1 A Fortiori Obligation from the Obligation to Prohibit Propaganda for War Under Article 20(1) of the ICCPR? 2.4.2 From the Obligation to Ensure Human Rights to the Obligation to Criminalize Serious Violations 2.4.3 Human Rights Relevance of the Crime of Aggression 2.4.4 Territorial Scope of the Obligation to Criminalize Aggression 2.4.5 Conclusion to International Human Rights Law 2.5 Customary International Law 2.5.1 The Classical Inductive Approach: State Practice and Opinio Iuris 2.5.2 The Relationship Between the Obligation to Criminalize, the Obligation to Exercise Jurisdiction and the Obligation to Prosecute (or Extradite) 2.5.3 Limited Aggression-Specific State Practice Supported by Opinio Iuris on the Obligation to Criminalize 2.5.4 No General Customary Obligation to Criminalize “Crimes Under International Law” Under Domestic Law 2.5.5 Conclusion to Customary International Law 2.6 Ius Cogens 2.6.1 Definition and Characteristics of a Ius Cogens Norm 2.6.2 Methodological Difference of the Ius Cogens Avenue in Comparison to the Customary International Law Avenue 2.6.3 Aggression as a Crime Based on a Ius Cogens Norm 2.6.4 Effects of a Ius Cogens Norm: An Obligation to (Extradite or) Prosecute and an Inherent Obligation to Criminalize? 2.6.5 Conclusion to Ius Cogens 2.7 Conclusion References 3 The Core Wrong of the Crime of Aggression 3.1 Introduction 3.2 Approaching the “Core Wrong” of a Crime 3.2.1 The Offense Definition and the “International Element” 3.2.2 The Theory on Protected Legal Interests (Rechtsgüterlehre) 3.2.3 Protected Legal Interests and Type of Attack 3.3 State Sovereignty as a Protected Legal Interest 3.3.1 The State Interests Mentioned in Article 8bis(2) of the ICC Statute 3.3.2 The Underlying Acts Against Another State in Article 8bis(2) of the ICC Statute 3.3.3 The Need to Move Beyond the Bilateral Sphere 3.4 International Peace as a Protected Legal Interest 3.4.1 The Multifaceted Concept of Peace 3.4.2 The Preambular Presumption of the ICC Statute: Peace as an Overarching Protected Legal Interest 3.4.3 The Underlying Prohibition of the Use of Force as a Means to Protect Peace 3.4.4 The Crime of Aggression as the Post-Nuremberg Version of the “Crime Against Peace” 3.5 Individual Interests as Protected Legal Interests 3.5.1 The Protection of Individual Interests by Crimes Under International Law? 3.5.2 The Humanization of International Law 3.5.3 Humanized Sovereignty: The Protection of State Sovereignty to Protect Rights of Those Living Within the State 3.5.4 The “Manifest” Threshold Cannot be Fulfilled Without Affecting Individuals 3.5.5 Lower Level of Protection of Individual Interests by Triggering International Humanitarian Law 3.5.6 Conclusion to Individual Interests as Protected Legal Interests 3.6 The Type of Attack on the Protected Legal Interests 3.6.1 Use of Armed Force by a State 3.6.2 The Aggressive Use of Armed Force: A Manifest Violation of the Ius ad Bellum 3.6.3 Committed by Persons from the Leadership Circle of a State 3.6.4 Conclusion to the Type of Attack 3.7 Conclusion References 4 Mapping the Normative Gaps Under Domestic Law 4.1 Introduction 4.1.1 An Illustration of the Limits of the “Minimalist Approach” to Implementation 4.1.2 Types of Criminal Offenses Under Domestic Lex Lata 4.1.3 The Reference and the Comparative Factors for the Gap Analysis 4.1.4 No Normative Gaps Due to the Direct Applicability of Aggression as a “Crime Under International Law”? 4.2 Treason 4.2.1 General Understanding of Treason 4.2.2 Protected Interests: “Oldest Crime Against the State” 4.2.3 Type of Attack: Force of a Certain Threshold, Attack “from Within”, Owing Allegiance 4.3 Other Ordinary Criminal Offenses 4.3.1 Criminal Offenses that Capture Individual Acts that Make Up the State Act of Aggression 4.3.2 Protected Interests: Primarily Individual Interests 4.3.3 Type of Attack: No Integration in a State Act or of Ius ad Bellum Considerations 4.3.4 The Combatant’s Privilege as an Obstacle? 4.3.5 Conclusion to Other Ordinary Criminal Offenses 4.4 The “Preliminary Offenses” of Incitement to War and Propaganda for War as Informed by the ICCPR 4.4.1 General Understanding of Incitement to War and Propaganda for War 4.4.2 Protected Interests: In Principle the Same as Those Violated by War 4.4.3 Type of Attack: Preliminary Crime, Communicative Conduct, No Leadership Clause 4.5 The Crime of Aggressive War Modelled on the Nuremberg and Tokyo Precedents 4.5.1 General Understanding 4.5.2 Protected Legal Interests: In Principle the Same as Those Protected by the Kampala Definition 4.6 Genocide, Crimes Against Humanity and War Crimes as By-Products of Crimes of Aggression 4.7 Crime of Aggression as a War Crime: “Excessive Attack” as a Gateway for Ius ad Bellum Considerations? 4.7.1 General Understanding 4.7.2 Protected Interests: Civilians and International Peace 4.7.3 Type of Attack: Ius ad Bellum Violation Reflected in “Excessive Attack”? 4.7.4 Conclusion to the Crime of Aggression as a War Crime 4.8 Crime of Aggression as a Crime Against Humanity: “Other Inhumane Acts” as a Gateway for Ius ad Bellum Considerations? 4.8.1 General Understanding: “Controlled Use of Analogy” for Assessing “Other Inhumane Acts” 4.8.2 Protected Legal Interests: Civilians, Humanity and International Peace 4.8.3 Type of Attack: Ius ad Bellum Violation Reflected in “Other Inhumane Act”? 4.8.4 Conclusion to the Crime of Aggression as a Crime Against Humanity 4.9 Conclusion References 5 The Restricted Jurisdictional Regime of the International Criminal Court 5.1 Introduction 5.1.1 Why the Jurisdictional Reach of the International Criminal Court Matters for Domestic Implementation 5.1.2 The Restrictions of the “Ordinary” Jurisdictional Regime Depending on the Operationalization of Consent 5.1.3 The Requirement of Consent from the Perspective of International Adjudication and Criminal Adjudication 5.1.4 Chronological Structure and Focus on Jurisdictional Regime upon State Referral and Proprio Motu Investigations 5.2 The Rome Compromise: Single-Ratification Regime 5.2.1 Ratification by the Territorial State or National State of the Accused 5.2.2 Drafting History: Compromise Between Universal Jurisdiction and More Consensual Forms of Jurisdiction 5.2.3 Inclusion of Nationals of Non-States Parties Under Territorial Jurisdiction 5.2.4 Inclusion of Territory and Nationals of Non-States Parties by Ad Hoc Acceptance, Article 12(3) of the ICC Statute 5.2.5 Difference in Reach in Case of a UN Security Council Referral 5.2.6 Critical Account of the Jurisdictional Reach Under the Single-Ratification Regime 5.3 The Kampala Compromise: Soft Consent-Based Regime for States Parties 5.3.1 In Principle: Single-Ratification Regime 5.3.2 Ability for States Parties to Opt Out, Article 15bis(4) of the ICC Statute 5.3.3 Categorical Exclusion of Territory or Nationals of Non-States Parties, Article 15bis(5) of the ICC Statute 5.3.4 Possibility for Non-States Parties to Declare an Ad Hoc Acceptance Under Article 12(3) of the ICC Statute? 5.3.5 Difference in Reach in Case of UN Security Council Referral, Article 15ter of the ICC Statute 5.3.6 Critical Account of the Jurisdictional Reach Under the Soft Consent-Based Regime for States Parties 5.4 The New York City Resolution: Strict Consent-Based Regime with Opt-Out Option for States Parties? 5.4.1 Content of the Activation Resolution 5.4.2 Drafting History: No Compromise between Strict Consent-Based Regime and Opt-Out Regime 5.4.3 Legal Value of the Activation Resolution 5.4.4 Interpretation of Article 15bis(4) of the ICC Statute in Light of Its Amendment Procedure 5.4.5 Critical Account of the Jurisdictional Reach Under the Strict Consent-Based Regime with Additional Opt-Out Option for States Parties 5.5 Conclusion References 6 Options for Incorporating the Definition of the Crime of Aggression into Domestic Law 6.1 Introduction 6.1.1 The Principle of Complementarity and the Decisions of Whether and How to Implement 6.1.2 Implementation as an Act to Integrate an International Crime Definition into the Domestic Legal Order 6.1.3 The Advantages of Complete Implementation and Modified Implementation 6.1.4 The Different Understandings of the Principle of Legality as a Source of Tension 6.2 Implementation by Copying 6.3 Implementation by Reference 6.3.1 Different Types of References as Illustrated by the Samoan Implementation 6.3.2 Tensions with the Principle of Legality? 6.3.3 Conclusion 6.4 Modified Implementation 6.4.1 Over-Inclusive and Under-Inclusive Implementations 6.4.2 Modifications with Respect to the Underlying Act of Aggression 6.4.3 Modifications with Respect to the “Manifest” Threshold 6.4.4 Modifications with Respect to the Leadership Clause 6.4.5 Modification with Respect to the Individual Conduct 6.4.6 Conclusion to Modified Implementation 6.5 Conclusion References 7 Legislative Specification of the Geographical Ambit of Domestic Criminal Jurisdiction 7.1 Introduction 7.1.1 Jurisdiction and Its Various Expressions 7.1.2 The Lotus Case and the Framework of International Law for Domestic Criminal Jurisdiction 7.1.3 Consequences of Excessive Implementation 7.2 The Principles of Jurisdiction and Their Broader Categorization 7.2.1 The Nature of the Crime and Principles of Jurisdiction 7.2.2 Principles of Territorial and Extraterritorial Jurisdiction 7.2.3 “Aggressor State Jurisdiction” and “Other State Jurisdiction”? 7.3 Principle of Territoriality 7.3.1 General Understanding and Applicability to the Crime of Aggression 7.3.2 The Locus Delicti of the Crime of Aggression: Even “Third State” Jurisdiction due to the Ambiguous Constituent Element of “Gravity”? 7.4 Nationality Principle 7.4.1 General Understanding and Applicability to the Crime of Aggression 7.4.2 The Nationality of the Aggressor: Does Aggressor State Jurisdiction Equal Nationality Jurisdiction? 7.5 Protective Principle 7.5.1 General Understanding and Applicability to the Crime of Aggression 7.5.2 Whose Interests Are Affected: The Victim State and Its Allies? 7.6 Passive Personality Principle 7.6.1 General Understanding 7.6.2 Applicability to the Crime of Aggression: A Crime Committed Against Individuals? 7.7 Universal Jurisdiction 7.7.1 General Understanding 7.7.2 Closely Related Principle of Representation and Principle of Treaty-Based Jurisdiction 7.7.3 Methodological Framework for Determining the Applicability to the Crime of Aggression Under Customary International Law 7.7.4 Inductive Approach: Aggression-Specific State Practice and Opinio Iuris 7.7.5 Deductive Approach: Principle-Based Reasoning 7.7.6 Conclusion: Applicability of Universal Jurisdiction to the Crime of Aggression 7.8 Conclusion References 8 Legal Challenges for Foreign Adjudicative Jurisdiction 8.1 Introduction 8.1.1 Legal Challenges as a Response to the Unique Character of the Crime of Aggression? 8.1.2 Sovereignty as the Origin of Most Legal Challenges 8.1.3 Presumption of Congruency Between Prescriptive and Adjudicative Jurisdiction Unless Prohibitive Rule 8.2 The Principle of Par in Parem non Habet Imperium 8.2.1 The Claim in Article 8 of the 1996 Draft Code of Crimes of the International Law Commission 8.2.2 A Principle with a Different Original and an Uncertain Current Understanding 8.2.3 No General Practice Accepted as Law in Support of the Claimed Restriction to the Aggressor State 8.2.4 Conclusion to the Principle of Par in Parem non Habet Imperium 8.3 Personal Immunity from Foreign Criminal Jurisdiction 8.3.1 Rationale: Smooth Conduct of International Relations 8.3.2 Limited Personal, Limited Temporal and Absolute Material Scope 8.3.3 Applicability Even If Commission of Crime of Aggression 8.3.4 Conclusion to Personal Immunity 8.4 Functional Immunity from Foreign Criminal Jurisdiction 8.4.1 Rationale: Consequence of State Immunity or Something Else? 8.4.2 Limited Material, Broad Personal and Broad Temporal Scope 8.4.3 Methodological Framework for Determining the (In-)Applicability to the Crime of Aggression Under Customary International Law 8.4.4 Legal Nature of Functional Immunity 8.4.5 Inductive Approach: Aggression-Specific State Practice 8.4.6 Deductive Approach: Principle-Based Reasoning 8.5 The Monetary Gold Doctrine 8.5.1 The Origin of the Doctrine: Contentious Proceedings of the International Court of Justice 8.5.2 Extension of the Doctrine to All International Tribunals? 8.5.3 Extension to Domestic Aggression Proceedings? 8.6 Conclusion References Summary and Final Conclusions Chapter 2—An Obligation to Criminalize Aggression Under Domestic Law? Chapter 3—The Core Wrong of the Crime of Aggression Chapter 4—Mapping the Normative Gaps Under Domestic Law Chapter 5—The Restricted Jurisdictional Regime of the International Criminal Court Chapter 6—Options for Incorporating the Definition of the Crime of Aggression into Domestic Law Chapter 7—Legislative Specification of the Geographical Ambit of Domestic Criminal Jurisdiction Chapter 8—Legal Challenges for Foreign Adjudicative Jurisdiction Chapter 2–Chapter 8 Annex: Domestic Legislation A.1 Afghanistan A. 2 Armenia A.3 Austria A.4 Azerbaijan A.5 Belarus A.6 Croatia A.7 Cyprus A.8 Czech Republic A.9 Ecuador A.10 Estonia A.11 Finland A.12 Georgia A.13 Germany A.14 Hungary A.15 Kazakhstan A.16 Latvia A.17 Liechtenstein A.18 Lithuania A.19 Luxembourg A.20 Moldova A.21 Netherlands A.22 North Macedonia A.23 Portugal A.24 Russia A.25 Samoa A.26 Slovenia A.27 Tajikistan A.28 Timor-Leste A.29 Ukraine A.30 Uzbekistan A.31 Vietnam Index