Abstract
Russia’s invasion of Ukraine was described as ‘aggression’ in the resolution adopted by the UN General Assembly, and there have been growing calls for President Putin to be prosecuted for the crime of aggression. This article reviews the historical development of the crime of aggression, which has been anything but straightforward, and examines the issues of interpretation of the relevant articles and amendments to the Rome Statute of the International Criminal Court. The article then presents one of the practical problems associated with criminal proceedings for the crime of aggression by using the historical example of the Tokyo Tribunal. Although a trial of the perpetrators of aggression may be desirable, and indeed there have been several proposals to this effect, it should be noted that, in addition to the discussion about the forum in which the trial should take place, it will require effort to resolve a number of issues related to establishing, on the basis of evidence, the criminal responsibility of individuals for the act of aggression by a State.
The author was an academic advisor to the Japanese delegation to the Special Working Group on the Crime of Aggression from 2007 to 2009. However, the views expressed in this article are personal. The author submitted her final accepted manuscript to the publisher on 25 May, 2023.
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Notes
- 1.
This distinction is inspired by the UN General Assembly’s resolution (260B (III), A/RES/3/260B) in 1948, which will be discussed in the section II, subsection 2.
- 2.
- 3.
Watts (1999), pp. 1657–1668.
- 4.
Watts, Ibid., pp. 1669–1670.
- 5.
‘Question of International Criminal Jurisdiction’, Report by Emil Sandström, Document A/CN.4/20, Yearbook of the International Law Commission, Vol. II, 1950, pp. 18–20; ‘Question of International Criminal Jurisdiction’, Report by Ricardo J. Alfaro, Document a/CN.4/15, Yearbook of the International Law Commission, Ibid., pp. 1–18.
- 6.
‘Report of the International Law Commission to the General Assembly’, Yearbook of the International Law Commission, Ibid., pp. 378–379.
- 7.
In 1933, before World War II, the Convention on the Definition of Aggression was adopted. Article 2 defined ‘aggression’ as follows: ‘Accordingly, the aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be State which is the first to commit any of the following actions: (1) Declaration of war upon another State; (2) Invasion by its armed forces, with or without a declaration of war, of the territory of another State; (3) Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State; (4) Naval blockade of the coasts or ports of another State; (5) Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection.’.
- 8.
Ko (2011), pp. 509–528.
- 9.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, Article 12, Commentary to Article 12, paras 5–7.
- 10.
Kress and Leonie (2010), p. 1194.
- 11.
Barriga (2009), pp. 1–20.
- 12.
Informal inter-sessional meeting on the crime of aggression, June 2009-ICC-ASP/8/INF.2, para. 5.
- 13.
Consensus is usually understood as a method of decision-making whereby a decision is adopted as the general agreement of all members of an organisation or meeting based on consultation and negotiation, rather than by a formal vote. It is sometimes understood as a decision taken on the basis of this procedure, but the appropriate use of the term should be the reference to the procedure. See also Wolfrum (2012), pp. 673–678. Since no vote is taken, it differs from adoption by unanimous consent. There are two types of consensus procedure: either any formal objection prevents the decision from being adopted or, in the event of a failure of consensus, a fresh vote is held—the Rome Statute being the latter (Article 123). In some cases, therefore, the decision could have been put to a vote, but this option was never taken at the Kampala Conference, which consistently aimed for adoption by consensus (and also in NY when the activation resolution was adopted in 2017). Note that the United States has sent a government delegation to the Conference of the Parties as an observer since 2009 and also insisted that consensus be adopted at the review meeting. As for the other permanent members of the Security Council, Russia and China also participated in the Review Conference as observer states (the United Kingdom and France are parties).
- 14.
This may seem contrary to the principle of pacta sunt servanda. However, while it may be binding without acceptance, the importance of State acceptance is maintained by the withdrawal provision. That is, when an amendment enters into force under Article 121 (4), a State party that has not accepted the amendment may withdraw from the Statute by giving notice within one year after the amendment enters into force (Article 121 (6)). In contrast, there is no such right of withdrawal for Article 121 (5), since acceptance is required for entry into force, and non-accepting states are not affected by the amendment. Schabas (2016), p. 1503.
- 15.
Barriga (2009), p. 39.
- 16.
For the negotiating process and the various proposals presented, see Kress and von Holtzendorff, Ibid., pp. 1179–1217.
- 17.
At the Kampala Conference, an amendment to Article 8 (2)(e) was also adopted, and it was adopted in accordance with article 121 (5) (Resolution RC/Res. 5).
- 18.
It is difficult to know why this formulation was adopted at the Rome Conference. For the explanation regarding the first sentence, see Clark and Alexander (2022), pp. 2878–2881. Regarding the draft history, during the discussions in the ILC, the consent “to be bound by the treaty” establishing the ICC was conceptually distinguished from the consent “to the subject-matter jurisdiction” of the international court to be established by the treaty. In the draft Statute prepared by the ILC in 1994, only in relation to genocide was it proposed that the former consent should automatically imply the latter (automatic jurisdiction) and for other crimes, the State Parties should be given an opportunity to consent (Opt-In). However, eventually, at the Rome Conference, the automatic jurisdiction was introduced for all core crimes (Article 12(1)). Coracini (2008), pp. 700–702; Ko (2020), pp. 44–45.
- 19.
- 20.
On negotiation process leading up to the adoption, see Mikami (2018), pp. 66–90.
- 21.
Akande and Tzanakopoulos, Ibid., p. 942.
- 22.
- 23.
Okampo (2023).
- 24.
Eboe-Osuji (2023).
- 25.
Heller (2022), p. 6.
- 26.
Heller, Ibid., pp. 17–19.
- 27.
G7 Japan 2023 Foreign Ministers’ Communiqué, April 18, 2023, Karuizawa, Nagano.
- 28.
A trial in absentia is not permitted in the ICC (Article 63 (1) of the Rome Statute).
- 29.
For example, extraordinary effort was needed to capture Charles Taylor, a former president of Liberia, to bring him to justice at the Special Court for Sierra Leone. See also Tejan-Cole (2009), pp. 205–232.
- 30.
Ko (2013), pp. 81–101.
- 31.
For the details of how the Japanese defendants and their lawyers responded, see Higurashi, Ibid., pp. 129–194.
- 32.
There were fifty-five counts contained in the indictment, Count 1–5: common plan or conspiracy, Counts 6–17: plans and preparations for war against another country, Counts 18–26: initiation of war, Counts 27–36: waging of war, Counts 37–38: common plan or conspiracy on murder, Counts 39–43: murders during the attack on Pearl Harbor and at the start of the Pacific War, Count 44: murder on a wide scale on land and at sea, Counts 45–50: slaughter of inhabitants during the Nanjing Incident and other atrocities, Count 51–52: murder of inhabitants in the Soviet Union-affiliated territories, Count 53: conspiracy regarding violation of laws or customs of war, Count 54: execution of such a conspiracy, Count 55: omission of oversight responsibility, and failing to prevent violation of the laws of war. For the charges and indictments, see Higurashi, Ibid., pp. 99–106.
- 33.
Antonio Cassese, who contributed to the development of international criminal jurisdictions, once pointed out the importance of political will in establishing the International Tribunal for the Former Yugoslavia. Cassese (2004), p. 5.
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Ko, K. (2023). The Ukrainian Conflict and the Crime of Aggression. In: Furuya, S., Takemura, H., Ozaki, K. (eds) Global Impact of the Ukraine Conflict. Springer, Singapore. https://doi.org/10.1007/978-981-99-4374-6_17
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