LEGAL PROSECUTION OF AGGRESSION REQUIRED AGREED DEFINITION, PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT TOLD

27 March 1996

Press Release
L/2765

LEGAL PROSECUTION OF AGGRESSION REQUIRED AGREED DEFINITION, PREPARATORY COMMITTEE ON INTERNATIONAL CRIMINAL COURT TOLD

19960327 Speakers Divided on Whether 'Aggression' Should Be in Court's Jurisdiction; Some See Conflict between Court's Jurisdiction, Security Council Competence

International legal prosecution of the crime of aggression could be impeded by the absence of a universally agreed-upon definition of that act, the Preparatory Committee on the Establishment of an International Criminal Court was told this morning.

Delegations speaking before the Committee were divided as to whether the proposed court could effectively prosecute the crime of aggression. Several speakers said that to preclude the crime of aggression, 50 years after the Nuremberg and Tokyo Tribunals, would represent a step backward for jurisprudence.

Others cited articles of the United Nations Charter which invested the Security Council with primary responsibility for the maintenance of international peace and security and for determination of the existence of aggression. Several delegates cited the need to define aggression and to balance the political competence of the Council with the juridical role of the proposed court.

The representative of the Russian Federation favoured the inclusion of the crime of aggression within the jurisdiction of the proposed court, with the determination by the Security Council of the existence of an act of aggression as an essential prerequisite. The representative of China said that the court should define aggression as clearly as possible. The definition and the determination of an act of aggression being committed were closely related. Article 39 of the Charter empowered the Security Council to make that determination.

The representative of the United States said that her Government had serious concerns about including the crime of aggression in the jurisdiction of the court. Defining aggression was a task of codification which had never been undertaken before. An entirely new criminal code on the legality of the

use of force would have to be drafted. The definition of aggression, undertaken by the General Assembly in its resolution 3314 of 1974, had "ducked" several serious issues by stating that nothing should prejudice the right to self-determination and independence, and in recognizing the right to self-defence.

At the end of the Second World War, she continued, the concept of aggression had been relatively simple. National liberation and humanitarian intervention had not been factors, as they were in many modern uses of force. The crime of aggression turned on highly political questions -- that was why the Security Council must have a central role. If it did not, the criminal court would be faced with a situation in which individuals with backgrounds in criminal law were taking testimony regarding competing territorial claims.

The representative of the United Kingdom also opposed the inclusion of aggression as one of the core crimes under the jurisdiction of the court. She said that although many arguments had been put forward for such an inclusion, it remained doubtful whether those arguments were enough to justify such an inclusion.

The representative of France said that if the crime of aggression was not included in the court's statute, the Preparatory Committee would not have fulfilled its duty. That would mean that, in many cases where a war of aggression was waged by one State against another, there could be no prosecution. A way, therefore, had to be found to make aggression fit within the court's jurisdiction. The best solution would be to provide that if the Security Council felt that an act was an act of aggression, then such an act would be recognized by the court as an act of aggression.

The representative of Finland also said that excluding aggression from the court's jurisdiction would result in a gap in the role of the court. Aggression should be defined in a simple a manner.

The representative of Denmark said that while the Council was responsible for dealing with aggression at the time it was taking place, the court could be entrusted with evaluating whether individuals could be held personally responsible. Italy's representation said that failure to grant jurisdiction over aggression would send a message of impunity to those who might commit that crime. He favoured deleting paragraph 3 of article 23 of the International Law Commission draft of the proposed court's statute. (That paragraph would prohibit the court from taking action regarding any situation being dealt with by the Security Council without the Council's permission.)

The representative of Qatar said that there was always a political element to the definition of aggression. States often defined acts of aggression as self-defence. Inclusion of aggression in the statute of the international criminal court should be accompanied by a clear definition of

International Criminal Court - 3 - Press Release L/2765 5th Meeting (AM) 27 March 1996

the crime. The representative of Singapore said that the question of aggression should only be dealt with upon the finalization of the draft Code of Crimes against the Peace and Security of Mankind by the International Law Commission.

The representatives of Mexico, Sweden, Germany, Viet Nam, Czech Republic, Canada, Slovenia, Yemen, Ukraine and Iran also favoured the inclusion of the crime of aggression in the court's jurisdiction, provided that it was accompanied by a generally agreed-upon definition of the crime.

The representative of Japan said that inclusion of the crime of aggression in the court's jurisdiction would invariably bring about Security Council involvement in the judicial process of the court. Such a political element should be excluded from the criminal court. The representative of Israel said that for the crime of aggression to fall within the court's jurisdiction, it must be clearly defined. But any attempt at such definition would make it more difficult to draft a widely acceptable statute for the court.

The representatives of Venezuela, Colombia and Libya stressed that the court -- a juridical institution -- should be independent of political bodies such as the Security Council.

The representatives of Australia, Ireland, Singapore, Netherlands, Malaysia and Norway favoured the establishment of a review conference to discussion the definition of aggression after the establishment of the international criminal court.

Also speaking this morning were the representatives of Belgium, Argentina, Hungary and Uruguay.

When it meets again this afternoon at 3 p.m., the Preparatory Committee will continue its discussion of the crime of aggression.

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