Drumbl: The Push to Criminalize Aggression: Something Lost Amid the Gains?

Mark A. Drumbl (Washington and Lee Univ. - Law) has posted The Push to Criminalize Aggression: Something Lost Amid the Gains? Here's the abstract:

Article 5(1) of the Rome Statute provides the International Criminal Court (ICC) with jurisdiction over the crime of aggression, but does not define the crime. A Special Working Group on the Crime of Aggression, however, has made considerable progress in developing a definition of the crime as well as conditions for the exercise of jurisdiction. In 2008, and in anticipation of a Review Conference to be held in 2010, the Special Working Group circulated a Discussion paper that, in its Annex, proposes a definition of the crime of aggression by way of amendment to the Rome Statute. The definitional consensus that has emerged is grounded on the assumption that a narrow definition of aggression stands a more realistic chance of securing state approval. Three characteristics animate this definitional consensus and contribute to its narrowness: (1) that state action is central to the crime; (2) that acts of aggression involve interstate armed conflict; and (3) that criminal responsibility only attaches to very top political or military leaders.

This Paper argues that, although there are pragmatic advantages to proceeding in this conservative manner, opportunity costs also arise. In response, this Paper suggests a gentle expansion in the scope of the crime of aggression, both in terms of the impugned acts as well as in terms of who can be prosecuted. It draws from two examples of crimes against the peace prosecutions in the wake of the Second World War (the Greiser and Sakai cases) that have received scant attention in the Special Working Group. The Paper also draws from the nature of contemporary threats to transnational stability, security, sovereignty, and human rights interests, many of which depart from the classic model of interstate armed conflict. The following sequence concerns me: (1) the Special Working Group proposes a narrow crime of aggression; (2) the Rome Statute is amended to include this narrow crime; (3) the Special Working Group packs up its tent; and (4) the conversation about what exactly aggression should proscribe simply loses momentum and ends. Such an outcome, which arises from a push to codify, might compromise the longer-term expressive value and effective legitimacy of the crime of aggression to future generations, especially in the developing world.