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Response to Koh and Buchwald’s Article: Don Quixote and Sancho Panza Tilt at Windmills

Published online by Cambridge University Press:  20 January 2017

Alain Pellet
Alain Pellet*
Affiliation:
University Paris Ouest, Nanterre-La Défense
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Extract

In their eagerness to justify the “United States perspective” on the Kampala definition of the crime of aggression and on the International Criminal Court (ICC), Koh and Buchwald tend to invent imaginary enemies and to ascribe to them views that they do not actually hold. In so doing, the authors weaken a thesis that, in some respects, is not devoid of interest. From at least two points of view, however, their article is paradoxical, if not pathetic—exactly like the U.S. position.

Type
Notes and Comments
Information
American Journal of International Law , Volume 109 , Issue 3 , July 2015 , pp. 557 - 569
Copyright
Copyright © American Society of International Law 2015

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References

1 International Criminal Court, Assembly of States Parties, Review Conference, The Crime of Aggression, ICC Res. RC/Res.6 (June 11, 2010). The resolution on the crime of aggression, as well as the other resolutions from the Kampala conference, is contained in the Review Conference’s Official Records, ICC Doc. RC/11 (2010). Part I includes the proceedings, and Part II the resolutions, declarations, and various annexes. The Web page for the Assembly of States Parties, http://www.ICC-cpi.int/en_menus/asp/Pages/asp_home.aspx, provides access to all official records, general debates, and other records and documentation.

2 Although Koh and Buchwald explain that “[t]his article is written in their personal capacities and does not necessarily represent the views of the... U.S. government,” Harold Hongju Koh & Buchwald, Todd F., The Crime of Aggression: The United States Perspective, 109 AJIL 257, 257 n.* (2015)Google Scholar, they do not distance themselves from the U.S. government’s views in any manner.

3 Given that the views of the authors substantially coincide with those of the U.S. government, I find it unnecessary to repeat the locution “the authors and the United States “; both are implied here and elsewhere in this Note.

4 A war of aggression contemplates a more massive action than a mere act of aggression.

5 See infra notes 23–24 and accompanying text.

6 I have in mind the attack by the United States and a handful of allies on Saddam Hussein’s Iraq in 2003. See Pellet, Alain, L’agression, Le Monde, Mar. 23–24, 2003, at 1 Google Scholar. The armed attacks of Iraq against Iran in 1980 and then against Kuwaitin 1990, along with the ensuing first and second “Gulf wars,” are among the other rare examples of real “wars of aggression.”

7 Koh & Buchwald, supra note 2, at 295.

8 Id.

9 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 90 (1998) [hereinafter Rome Statute].

10 See UN Charter, Arts. 1(1), 39. The word “aggression” is used in isolation only in reference to regional arrangements. Id., Art. 53. In the French text, Article 51 mentions “agression armée,” where as the English text speaks of “armed attack.” See id., Art. 51 (French and English versions).

11 See SC Res. 387 (Mar. 31, 1976) (Angola–South Africa); SC Res. 447 (Mar. 28, 1979) (same); SC Res. 454 (Nov. 2, 1979) (same); Scres. 577 (Dec.6, 1985) (same); SC Res. 405 (Apr. 15, 1977) (Benin); Scres. 411(June 30, 1977) (Mozambique–Southern Rhodesia); SC Res. 573 (Oct. 4, 1985) (Israel-Tunisia).

12 See SC. Res. 527 (Dec. 15, 1982) (South Africa–Lesotho). In Resolution 667 (Sept. 16, 1990), however, the Security Council used this same expression to characterize the aggression of Iraq against Kuwait, which certainly should qualify as a “war of aggression.”

13 Definition of Aggression, GA Res. 3314 (XXIX), annex (Dec. 14, 1974).

14 The “Understandings regarding the amendments to the Rome Statute of the International Criminal Court on the crime of aggression” are included as Annex III of ICC Resolution RC/Res.6, supra note 1.

15 ICC Res. RC/Res.6, supra note 1.

16 Koh & Buchwald, supra note 2, at 267.

17 Id. at 270.

18 See Vienna Convention on the Law of Treaties, Art. 31, para. 2, May 23, 1969, 1155 UNTS 331.

19 Koh & Buchwald, supra note 2, at 273 (emphasis added).

20 Koh and Buchwald accept that “[o]ne can argue that this principle is implicit in the other elements of paragraph 6 of the Understandings, but the Kampala conference’s reluctance to address explicitly such an important concern leaves the issue in an unfortunate ambiguity that may make it harder to prevent atrocity crimes in the future.” Id. I respectfully suggest that the U.S. Insistence on trying to “legalize” the concept of humanitarian intervention and that the way the United States proceeded might be a cause for the Review Conference’s reluctance.

21 Except in a citation. See id. at 272 n.45 (citing Taft, William H., Self-Defense and the Oil Platforms Decision, 29 Yale J. Int’l L. 291, 299–300 (2004))Google Scholar.

22 Id. at 267.

23 Id. at 272.

24 Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4, 35 (Apr. 9).

25 Even though General Assembly Resolution 3314, supra note 13, was adopted by consensus, the United States at the time did not show great enthusiasm for it. See, e.g., UN GAOR, 26th Sess., 1480th mtg., paras. 66–75, UN Doc. A/C.6/Pv.1480 (1974); UN GAOR , 26th Sess., 2319th mtg., paras. 96–100, UN Doc. A/C.6/Pv.2319 (1974). Moreover, the United States resisted a definition based on the General Assembly’s 1974 resolution defining aggression. See Murphy, Sean D., U.S. View of Crime of Aggression, 95 AJIL 400, 400–01 (2001)Google Scholar.

26 See, e.g., Koh & Buchwald, supra note 2, at 264–69.

27 GA Res. 3314 (XXIX), supra note 13, para. 4, reads as follows: “The General Assembly... Calls the attention of the Security Council to the Definition of Aggression, as set out below, and recommends that it should, as appropriate, take account of that Definition as guidance in determining, in accordance with the Charter, the existence of an act of aggression.” The Definition of Aggression is annexed to this resolution.

28 Koh & Buchwald, supra note 2, at 267. They also note: “Similarly, having drawn from a list that had been finalized in 1974, there was understandably no mention or even hint of how Resolution 3314’s definition might apply in the cases of cyber warfare that have recently emerged as one of the greatest potential security threats facing the international community.” Id. Idonothere take a positionon this most sensitive issue, a serious analysis of which would fall much beyond the scope of the present Note.

29 See supra note 10; see also SC Res. 1373 (Sept. 28, 2001). But see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 139 (July 9, 2004).

30 Koh & Buchwald, supra note 2, at 262.

31 Id. at 262–63.

32 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595, para. 32 (July 11, 1996).

33 The Security Council is not deprived of such a competence, however, if it finds that a genocide is a threat to the peace. See, e.g., SC Res. 935 (July 1, 1994) (requesting the secretary-general to establish a Commission of Experts to examine violations of international humanitarian law committed in Rwanda); SC Res. 955 (Nov. 8, 1994) (establishing the international tribunal and adopting its statute).

34 Summary Records of the 2384th Meeting, [1995] 1 Y.B. Int’l L. Comm’N3, 34, UN Doc.A/CN.4/Ser.A/1995 (statement of Pellet) (“A prior determination of aggression by the Security Council was not the ideal solution, but the Commission should resist the temptation of trying to decree a kind of world governance by judges, and above all national judges.”).

35 For a clear account of the negotiations having led to this unsatisfactory compromise, see Trahan, Jennifer, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, 11 Int’l Crim. L. Rev. 49 (2011)CrossRefGoogle Scholar.

36 See ICC Res. RC/Res.6, supra note 1, Art. 15 ter.

37 Id., Art. 15 bis(6–8).

38 Id., Art. 15 bis(9); see also id., Art. 15 ter(4).

39 Koh & Buchwald, supra note 2, at 274–75 (quoting the ILC with approval).

40 Code of Crimes Against the Peace and Security of Mankind, in Report of the International Law Commission on the Work of Its Forty-Eighth Session, UN GAOR , 51st Sess., Supp. No. 10, UN Doc. A/51/10 (1996).

41 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR , 56th Sess., Supp. No. 10, at 26, UN Doc. A/56/10 (2001), reprinted in James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002).

42 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, 22–25 (Feb. 14).

43 See, e.g., Pellet, Alain, Conclusions, in The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes 417, 422–23 (Tomuschat, Christian & Thouvenin, Jean Marc eds., 2005)CrossRefGoogle Scholar; Pellet, Alain, La responsabilité de l’état pour la commission d’une infraction internationale, in Droit International Penal 607, 620–22 (Ascensio, Hervé, Decaux, Emmanuel & Pellet, Alain eds., 2012)Google Scholar.

44 Cf. Rome Statute, supra note 9, Art. 27(2) (“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”)

45 Koh & Buchwald, supra note 2, at 19 (emphasis omitted).

46 Rome Statute , supra note 9, pmbl., para. 2.

47 Koh & Buchwald, supra note 2, at 271–72.

48 Rome Statute, supra note 9, pmbl., paras. 4–5.

49 Koh & Buchwald, supra note 2, at 271.

50 Judicial Decisions: International Military Tribunal (Nuremberg): Judgement and Sentences, 41 AJIL 172, 186 (1947)Google Scholar (judgement of September 30, 1946).

51 Farbeit from me to compare the United States, which I obviously hold for a real democracy, admirable in many respects, to Nazi Germany. Nevertheless, the reasoning behind this isolationist approach is not without similarities with that inspiring Goebbels following the petition addressed by Franz Bernheim to the League of Nations: “Gentlemen, a man’s home is his castle. We are a sovereign State: nothing that this individual has said concerns you. We will do what we want with our Socialists, our pacifists, our Jews; we will not accept the control of either humanity or the League of Nations.” Paul Ricoeur, Tolerance Between Intolerance and the Intolerable 93 (1996). In reality, this text is apocryphal, but the episode is nevertheless symbolic and edifying. See, e.g., Burgess, Greg, The Human Rights Dilemma in Anti-Nazi Protest: The Bernheim Petition, Minorities Protection, and the 1933 Sessions of the League of Nations 56 (Contemporary Eur. Research Ctr., Working Papers Series No. 2, 2002)Google Scholar; Burgers, Jan Herman, The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century, 14 Hum. Rts. Q. 447, 455–59 (1992)CrossRefGoogle Scholar. The real text of the Goebbels speech, which was read to journalists (and not before the Assembly of the League of Nations) was published in German. See Joseph Goebbels, Signale Der neuen Zeit [Messages From the New Era] 457 n.2 (1934). For a pious, legendary version, see Marc Agi, De l’idee d’universalite comme fondatrice du concept des droits de l’Homme d’apres la vie et l’Œuvre De René Cassin 354 (Antibes, Editions Alp’Azur 1980), and Mario Bettati, Le Droit d’ingerence. Mutation de l’ordre International 18 (1996). See also Cassin, René, Les droits de l’homme, 140 Recueil des cours 324 (1974 IV)Google Scholar.

52 Koh & Buchwald, supra note 2, at 281.

53 Id. at 281 n.72 (“under which all parties to the ICJ Statute have agreed that the Court will have compulsory jurisdiction only over those states that make a declaration under Article 36”).

54 The principle of universal jurisdiction over international crimes is now well established, even if its particular conditions of application still give rise to some debate.

55 Koh & Buchwald, supra note 2, at 276 (footnote omitted).

56 Id. at 277–90.

57 See Pellet, Alain, Entry into Force and Amendment of the Statute, in The Rome Statute of the International Criminal Court: A Commentary 145 (Cassese, Antonio, Gaeta, Paolo & Jones, John R. W. D. eds., 2002)Google Scholar.

58 Koh & Buchwald, supra note 2, at 284–90. This theory has been ably refuted elsewhere. See Zimmermany, Andreas, Amending the Amendment Provisions of the Rome Statute: The Kampala Compromise on the Crime of Aggression and the Law of Treaties, 10 J. Int’l Crim. Just. 209, 212–15 (2012)CrossRefGoogle Scholar.

59 Koh & Buchwald, supra note 2, at 285.

60 While reading Koh and Buchwald’s article, one often gets the impression that this is the intention.

61 Koh & Buchwald, supra note 2, at 290–92.

62 ICC Res. Rc/Res.6, supra note 1.

63 Admittedly, however, the question remains open whether such a declaration can be made at any posterior time (but before the seizing of the Court). But the main point is that a state can opt out, and there is nothing unusual in having to do so when ratifying or accepting the treaty.

64 Koh & Buchwald, supra note 2, at 280.

65 Id. at 282.

66 In terming it an “advantage,” I speak from Koh and Buchwald’s viewpoint as intellectual protectionists regard ing state consent.

67 Rome Statute, supra note 9, Art. 121 (emphasis added).

68 As noted above, the moment when this declaration must be made is not entirely clear.

69 See Trahan, Jennifer, The Rome Statute’s Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference, 11 Int’l Crim. L. Rev. 49, 66 n.68 (2011)CrossRefGoogle Scholar.

70 See Report of the International Law Commission on the Work of Its Sixty-Third Session, UN GAOR, 66th Sess., Supp. No. 10, Add. 1, at 55–62, UN Doc. A/66/10/Add.1; see also Pellet, supra note 57, at 155–57.

71 Although the rhythm of new ratifications or acceptances is rather slow, this number should be reached in a relatively near future; at the time that this Note was written (June 1, 2015), twenty-three states had accepted or ratified the Kampala amendments. See United Nations Treaty Collection, Chapter XVIII: Penal Matters, at https://treaties.un.org/pages/Treaties.aspx?id=18&subid=A&lang=en.

72 Rome Statute, supra note 9, Art. 121(3).

73 ICC Doc. No. Rc/11, supra note 1, at 127; see also Koh & Buchwald, supra note 2, at 293 (quoting the same passage).

74 For evidence that this alternative is not likely—at least in the United States—one need look no further than the U.S. response to the abuses at Abu Ghraib and the relatively light sentences received by the torturers. See also Al Shimari v. Caci Premier Tech., Inc., Case No. 1:08-cv-00827-GBL-JFA (E.D. Va. June 18, 2015) (“[The court] finds that Defendant [a private company collaborating with the military at Abu Ghraib] was under the ‘plenary’ and ‘direct’ control of the military and that national defense interests are so ‘closely intertwined’ with the military decisions governing Defendant’s conduct, such that a decision on the merits would require this Court to question actual, sensitive judgments made by the military. Additionally, the Court finds that even were the Court to find jurisdiction on those grounds, Plaintiffs’ claims could not be adjudicated because the case lacks judicially manageable standards.”).

75 See Pellet, Alain, Pour la Cour pénale internationale quand même!—Quelques remarques sur sa compétence et sa saisine, 1 Int’l Crim. L. Rev. 91 (2001)CrossRefGoogle Scholar.

76 Koh & Buchwald, supra note 2, at 293–95.