Alexander Vadokas*
Abstract
This article analyses the leadership clause of Article 8bis of the Rome Statute in light of a possible case against a legal counsel who advises a government on its course of action. After examining the origins of the crime of aggression in the jurisprudence of the post-World War Two tribunals, a comparison between the historic “shape or influence” standard and the contemporary “control or direct” requirement is made to find out whether the Rome Statute follows its historic precedents or goes beyond them by establishing its own stricter requirements.
A. Introduction
In June 2010, the Assembly of State Parties adopted the Kampala amendments on the crime of aggression which1 entered into force in July 2018. They were described as a landmark in evolving international criminal law.2 Nevertheless, not a single case has been brought to the International Criminal Court (the Court), nor a preliminary examination has been conducted yet. The question arises whether there will ever be one.3 Doubts do not just emerge from the political nature of the use of force and the powers given to the UN Security Council under Article 16 of the Rome Statue4, but also from the definition contained in Article 8bis of the Rome Statue and a changing world since the Nuremberg and Tokyo trials.5 Sceptics of this definition point out that it will be difficult to identify defendants whom to charge with the crime of aggression.6 This is so because of the threshold clause contained in Article 8bis of the Rome Statute limiting the circle of possible perpetrator or accomplices to leaders on the higher levels of the decision-making ladder. The Office of the Prosecutor (OTP) itself stated that in order to improve its success rate in court it “consider[s] bringing cases against notorious or mid-level perpetrators”.7 How does this respond to the leadership character even critics of the Statute’s definition agree on? On the other hand, does this leadership character stand in the way of charging “those persons who appear to be the most responsible for the identified crimes” as laid down in another paper by the OTP?8 Can such a mid-level perpetrator be “a person in a position effectively exercise control over or to direct the political or military action of a state” as required by Articles 8bis and 25(3bis) of the Rome Statute?
B. The Role of the Government Counsel
Firstly however, the job of the government counsel relevant to the present issue should be investigated a bit more precisely. The prohibition of the use of force as a fundamental
*At the time of writing, the author was a student assistant in the Independent Research Group “Criminal Law Theory” of the Max-Planck-Institute for the Study of Crime, Security and Law Freiburg headed by Dr. iur. Dr. phil. Philipp-Alexander Hirsch. The author would like to express his gratitude to all members of the research group for their valuable input.
1 Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression (adopted 11.06.2010) 2922 UNTS 199.
2 Kai Ambos, ‘The Crime of Aggression after Kampala’ (2010) 53 German Yearbook of International Law 463, 463; 508; Claus Kreß and Leonie von Holtzendorff, ‘The Kampala Compromise on the Crime of Aggression’ (2010) 8 Journal of International Criminal Justice 1179, 1216; Astrid Resininger Coracini, ‘The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – At Last … In Reach … Over Some’ (2010) 2 Göttingen Journal of International Law 745, 748; 787.
3 For a detailed discussion see Andreas Zimmermann and Elisa Freiburg-Braun, Aggression under the Rome Statute: An Introduction (2019) paras 421–438; Stefanie Bock, ‘Individuelle Verantwortlichkeit Für Staatliche Angriffshandlungen. Überlegungen Zum Verbrechen Der Aggression’ in Jan Christoph Bublitz and others (eds), Recht – Philosophie – Literatur. Festschrift für Reinhard Merkel zum 70. Geburtstag 1451.
4 Rome Statute of the International Criminal Court (adopted 17.07.1998, entered into force 01.07.2002) 2187 UNTS 90.
5 Andreas Paulus, ‘Second Thoughts on the Crime of Aggression’ (2009) 20 European Journal of International Law 1117, 1117, 1124; Noah Weisbord, ‘Conceptualizing Aggression’ (2009) 20 Duke Journal of Comparative & International Law 1, 47; M Cherif Bassiouni, Introduction to International Criminal Law (2nd rev., Nijhoff 2013) 668 et seq; Alex Whiting, ‘Could the Crime of Aggression Undermine Deterrence?’ (2021) 19 Journal of International Criminal Justice 1017, 1018.
6 Mikaela Ediger, ‘Prosecuting the Crime of Aggression at the International Criminal Court: Lessons from the Tokyo Tribunal Notes’ (2018) 51 New York University Journal of International Law and Politics 179, 192–199.
7 Office of the Prosecutor, ‘Strategic Plan 2019–2021’ para 24 \https://www.icc-cpi.int/itemsDocuments/20190726-strategic-plan-eng.pdf accessed 30 May 2024.
8 Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ paras 42–43 \https://www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf accessed 21 January 2022; Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court (Second edition, 2021) 215–216.
principle of today’s world order cannot be circumvented by covering illegal military actions with legal arguments of sometimes questionable nature. When Article 8bis of the Rome Statute demands an “act of aggression which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations” it opens up space for legal debate. Therefore, governments are well advised to take legal aspects into account before taking military action. However, a talented lawyer can find a legal basis for any action – might it be as questionable as possible.9 In legal systems where parliament has to approve of military operations, any legal argument will be welcomed in the political debate. To shield political and military leaders from false legality in sheep’s clothing, jurists cannot per se be excluded from possible criminal liability. Nevertheless, caution must be shown when it comes to highly debated exceptions to Article 2(4) of the UN Charter. Preventive self-defence, humanitarian intervention and intervention upon invitation all constitute cases of the use of force which – if accepted – do not fulfil the requirement of violation of the UN Charter and if not might not be a manifest violation.10 “Character, gravity and scale” as in Art. 8bis of the Rome Statute are legal terms which need to be interpreted. “Gravity” describes the seriousness or significance of the use of force whereas “scale” level or magnitude of an act.11 If a government official – for example the president of a country as commander in chief – presents his military and legal staff the idea to conduct a military operation in a neighbouring state, his military advisors might offer him a variety of options. Somewhere between the narrowly tailored elimination of the target by remotely controlled high precision weapons with relatively low impact and casualties over the employment of a group of special forces and a full-on invasion lies the line crossing the gravity and scale requirements. The legal advisor has to filter which of these options are still in line with international law and which ones constitute a manifest violation of the UN Charter. By defining this line between legality and criminality, the legal counsel clearly is in a position to exert influence at the very least.
Between political will and military possibility lies the safeguard of legality. This tension is well displayed in the movie “Eye in the Sky” where a decision must be made during a military operation with changing circumstances. It demonstrates how military possibilities are restricted by legal safeguards such as the principle of proportionality. In a – perhaps idealistic – world in which the rule of law is never broken, if a commander turns to his legal advisor to determine the legality of a military move, he would like to execute, the legal counsel effectively holds the reins in their hands.
Legal counsels have various options to use their position to transform political ideas into legal reality. Every government has its in-house legal advisers. They draft bills and administrative guidelines or prepare statements on the legality of a certain issue. Those opinions play a pivotal role in the decision-making process. Since the establishment of the UN, the legality of war has been questioned more than ever. In order to overcome the prohibition of the use of force contained in Article 2(4) of the UN Charter, careful legal considerations must be made. Politicians in the legislative and administrative branch of a state ground their decisions on expert reports. Their political value regularly depends on the person drafting it. Nonetheless, some hold the opinion that the legal advisor’s sole task – regardless of whether in house or not – is to support the client’s political goal and finding a (pseudo-)legal basis for it.12 If proven, this would strongly suggest criminal liability as either co-perpetrator or aider and abettor. In such setting, it cannot be denied that a legal counsel shapes (by drafting own provisions) or influences (by providing the legal justification in the decision-making process) the political or military action of a state. Answering that question requires to contemplating the details of the specific constitutional and factual environment.13
The case of the Reich Minister of Foreign Affairs Joachim von Ribbentrop before the International Military Tribunal (IMT) can serve as a historic example of criminal responsibility of jurists. In its judgement, the IMT describes in detail how von Ribbentrop attended various meetings, discusses war strategies, pressured foreign governments to accept the Nazis’ occupation or their entering into the war.14 Compared to that, one of the Minister’s acts is missed easily. “Von Ribbentrop was advised in advance of the attack on Norway and Denmark and of the attack on the Low Countries, and prepared the official Foreign Office memoranda attempting to justify these aggressive actions.”15 The judges did not further elaborate on this point than those few lines. However, this is a task similar to the job of a government legal counsel. Due to von Ribbentrop’s different positions in the Third Reich’s hierarchy, the question whether those memoranda alone would suffice for a conviction under count one was left unanswered. Nonetheless, the judgement offers a glimpse on the involvement of legal memoranda in crimes against peace. Justifying acts of aggression meant taking part in the aggression itself.
The so called “torture memos” by John Yoo and Jay Baybee, two White House counsels during the Bush administration, pose a more recent example of how legal advisors can influence state actions. Although in the context of crimes against humanity, whose definition does not contain a leadership requirement, some authors argued Yoo and Bybee might have exposed themselves to criminal liability.16 The torture
9 Paulus (n 5) 1123.
10 Zimmermann and Freiburg-Braun (n 3) paras 181–200; Revaz Tkemaladze, ‘Unilateral Humanitarian Intervention: A Crime of Aggression under the Rome Statute of the International Criminal Court?’ (2020) 1 Levan Alexidze Journal of International Law (LAJIL) 133–135; Kai Ambos, Treatise on International Criminal Law The Crimes and Sentencing, vol 2 (Second edition, Oxford University Press 2022) 234; Bock (n 3) 1440.
11 Andreas Zimmermann and Elisa Freiburg-Braun, ‘Article 8bis’ in Kai Ambos (ed), Rome Statute of the International Criminal Court: A Commentary (4th edn, Beck Hart Publ Nomos 2022) paras 62–63.
12 Hans Corell, ‘The Role of the Legal Adviser of the Department of State’ (1991) 85 The American Journal of International Law 358, 359, 361.
13 Carl Schmitt, Das Internationalrechtliche Verbrechen Des Angriffskrieges Und Der Grundsatz ‘Nullum Crimen, Nulla Poena Sine Lege’ (Helmut Quaritsch ed, Duncker & Humblot 1994) 64.
14 1 USA et al v Goering et al (IMT) 285–286.
15 ibid.
16 Milan Markovic, ‘Can Lawyers Be War Criminals’ (2007) 20 Georgetown Journal of Legal Ethics 347; Joseph Lavitt, ‘The Crime of Conviction of John Choon Yoo: The Actual Criminality in the OLC during the Bush Administration’ (2010) 62 Maine Law Review 155, 174–180; Jens David Ohlin, ‘The Torture Lawyers’ (2010) 51 Harvard International Law Journal 193.
memos provided the guidelines for the official handbook on interrogations of al-Qaeda detainees. Yoo’s and Bybee’s interpretation of the US Constitution and other relevant law ruled out some interrogation techniques while permitting others to be used. Their reasoning directly influenced the actions of interrogators in Guantanamo Bay and Iraq;17 even though Yoo and Baybee themselves did not interrogate a single suspect. Applied to the legal setting of the crime of aggression, it becomes visible how a juridical opinion presented to high-level decision makers can determine the behaviour of those acting on the other end of the hierarchical ladder. The question stands: does this suffice to satisfy the leadership requirement of Article 8bis of the Rome Statute? Some authors do take this view,18 but usually do so without a detailed reasoning. A closer look at the scope of the leadership requirement therefore seems warranted.
C. Historic Development of the Crime of Aggression
Before the establishment of the Court similar considerations had to made after the Second World War. Therefore, the legal history of the crime of aggression can provide guidance in answering the question of criminal liability for a state’s aggressive acts.
The idea of punishing one individual “for a supreme offence against international morality and the sanctity of treaties”19 dates back to 1919, when the Principal Allied and Associated Powers called for a trial against the former German Emperor William II.20 However, this trial never took place. Thus, the evolution of the crime rather began when the world sought an answer to the mass atrocities committed by the Nazi regime.
I. The International Military Tribunals
During the Second World War, the Allies declared to jointly commit the “major criminals” to stand trial in the 1943 Moscow Declaration. They eventually signed the London Agreement in order to create an international tribunal for those “major war criminals”.21 The legal origin of crimes against peace was harshly debated during the trials and in the aftermath.22 In view of the IMT, the London Agreement “was the exercise of sovereign legislative power by countries to which the German Reich unconditionally surrendered”.23 Other war criminal tribunals confirmed this jurisprudence, whereas scholarly debate criticised it.24 However, due to the confirmation of the IMT jurisprudence by the Tokyo and subsequent Nuremberg Trials, crimes against peace have fully developed as customary international law.25
The first crime the IMT had to deal with was nothing less than the “supreme international crime”.26 This crime constituted count one and two of the indictment, being enshrined in Article 6(a) of the IMT Charter: crimes against peace. “[N]amely planning, preparation, initiation or waging of a war of aggression”. This language mostly prevailed during the negotiations for the Rome Statute. As the IMT judged upon the major criminals only, there was no need to explicitly add a leadership clause.27 The IMT nonetheless acquitted Hjalmar Schacht of charges for crimes against peace because he was not a part “of the inner circle around Hitler”.28 This serves as an early example that the circle of possible perpetrators of crimes against peace was meant to be strictly limited.
Similar to the IMT in Europe, the International Military Tribunal for the Far East sitting in Tokyo (IMTFE) prosecuted “major war criminals in the Far East”29. In its judgement, the IMTFE held that a position of influence is a necessary prerequisite of a conviction for crimes against peace.30 Defendant Heitaro Kimura was explicitly convicted for “giving advice”.31
The IMT went even further when it concluded that businessmen were part of the conspiracy to wage an aggressive war,32 thereby setting the scope wider than sworn in members of government.
II. The Subsequent Nuremberg Trials
After the joint trial by the four Allies, they passed Control Council Law No. 10 (CCL 10) in order to enable trials against other war criminals. The text copied the definition of crimes against peace but added in Article II paragraph 2(f) of CCL 10 that a person may only be charged with crimes against peace “if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial
17 Milan Markovic, ‘Advising Clients after Critical Legal Studies and the Torture Memos’ (2011) 114 West Virginia Law Review 109, 125–128; Lavitt (n 16) 156–167.
18 Yudan Tan, ‘The Crime of Aggression: Articles 8bis and 25(3bis) of the Rome Statute and Custom’, The Rome Statute as Evidence of Customary International Law (Brill Nijhoff 2021) 199; Asif Khan, Nazar Hussain and Sahib Oad, ‘The Rome Statute: A Critical Review of the Role of the SWGCA in Defining the Crime of Aggression’ (2023) 6 Pakistan Journal of International Affairs 22.
19 Article 227 of the Treaty of Versailles 1919.
20 For a detailed discussion of Article 227 of the Treaty of Versailles see Gerd Hankel, ‘The Versailles Treaty and the Idea of Prosecuting Wars of Aggression’ in Stefanie Bock and Eckart Conze (eds), Rethinking the Crime of Aggression (Springer 2022).
21 Article 1 of the IMT Charter 1945.
22 Bassiouni (n 5) 554–555; Paulus (n 5) 1120.
23 Goering et al. (n 14) 461; cited as in Carrie McDougall, ‘The Crimes against Peace Precedent’ in Claus Kreß and Stefan Barriga (eds), Crime of Aggression Library (Cambridge University Press 2016) 51.
24 14 US v von Weizsäcker et al [1949] NMT Case No. 11 318–322; Trial of Gauleiter Artur Greiser [1946] Law Reports of Trials of War Criminals 70, 75, Vol. XIII; LRTWC, Vol. XIV Trial of Takashi Sakai [1946] Law Reports of Trials of War Criminals 3–4, Vol. XIV; McDougall (n 23) 50–52 with further notes.
25 McDougall (n 23) 103.
26 1 Goering et al. (n 14) 186.
27 8 US v Krauch et al [1947] NMT Case No. 57 1124; Kevin Jon Heller, ‘Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression’ (2007) 18 European Journal of International Law 477, 480; William Schabas, The International Criminal Court a Commentary on the Rome Statute (2nd edn, Oxford University Press 2016) 309.
28 22 Goering et al. (n 14) 555; Schabas (n 27) 309.
29 Article 1 of the IMTFE Charter 1946; Nicolaos Strapatsas, ‘Is Article 25(3) of the ICC Statute Compatible with the Crime of Aggression’ (2007) 19 Florida Journal of International Law 155, 178.
30 Strapatsas (n 29) 178; Nikola R Hajdin, ‘Individual Criminal Responsibility for the Crime of Aggression: Tracking Down the Leaders of a State’ 44 \http://lup.lub.lu.se/student-papers/record/7855313 accessed 23 September 2023.
31 Judgment of 4 November 1948 (IMTFE) 49,807.
32 22 Goering et al. (n 14) 468 et seq; Zimmermann and Freiburg-Braun (n 11) para 39.
or economic life of any such country.” A line had to be drawn somewhere between the common soldier or ordinary citizen on the one hand and the top-level decision-maker on the other hand. This requirement was already deemed necessary in an expert opinion on the crime against peace written by German jurist Carl Schmitt in 1945 even before start of the IMT trial. Holding a whole people accountable for a state act as a form of collective culpability, would be incompatible with the modern understanding of guilt as an individual attribution of responsibility. Hence, a restriction to the actual policy maker had to be sought.33
Nevertheless, this first restriction on the circle of possible perpetrators and accomplices had to be filled with bigger precision. In the Roechling case, the appeals division of the French Military Tribunal overturned the conviction of Hermann Roechling for crimes against peace, as he “did not play a part which might be evaluated as a leading part within the meaning of the established legal interpretation of the provisions of (Control Council) Law No. 10”.34
The US Military Tribunal at Nuremberg (NMT) held in the Farben case that Article II (1)(a) of CCL 10 was not “intended to apply to any and all persons who aided, supported, or contributed to the carrying out of an aggressive war”, but those “who were responsible for the formulation and execution of policies may be held liable for waging wars of aggression”.35 This distinction was important in order to prevent the punishment of “the private soldier on the battlefield, the farmer who increased his production of foodstuffs to sustain the armed forces, or the housewife who conserved fats for the making of munitions.”36 In the view of the NMT mass punishments were “unthinkable”.37
The required position was finally formulated in the High Command case in which the NMT held “it is not a person’s rank or status, but his power to shape or influence the policy of his state, which is the relevant issue for determining his criminality under the charge of crimes against peace”.38
By this, the NMT established a standard which unambiguously extends to individuals outside formal government circles as long as any form of influence is maintained. One can easily imagine that setting the course of action of a government by defining legal guidelines or offering different possibilities to implement a certain policy can be interpreted as constituting influence.
The only cases brought before the NMT against public jurists was the Justice case. Defendants were public prosecutors, judges and state secretaries of the Reich Ministry of Justice, none of which were accused of crimes against peace, but the abuse of their judicial power in the persecution and oppression of civilians. 39 The classification as war crimes and crimes against humanity precluded the NMT from making any contributions to the jurisprudence regarding the leadership requirement. Regardless of their high positions in the judicial system, they were not able to influence the Nazis’ policies of destruction but rather were part of their execution.
III. Post War International Criminal Law
The crime of aggression played a minor role in the early days of modern international criminal law. On 14th December 1974, the UN General Assembly Adopted Resolution 3314 (XXIX) defining an act of aggression. The definition of the crime of aggression in Article 8bis(2) of the Rome Statute refers to this resolution when defining the state conduct of the act of aggression. However, neither of the Ad Hoc Tribunals contained the charge of crime of aggression in its statute. Thus, their case law could not influence on this issue the work of the International Law Commission (ILC) on the Draft Code of Crimes against the Peace and Security of Mankind of 1996 (1996 Draft Code)40. This proposed attempt to codify international criminal law contained its own definition of the crime of aggression in its Article 16 which read “[a]n individual who, as leader or organizer, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression.”41 According to the ILC, this provision closely resembled the language used by the Nuremberg precedents.42 It was of the opinion that an alleged perpetrator of a crime of aggression needs to possess the “necessary authority or power to be in a position potentially to play a decisive role” and therefore, the terms leader or organizer “must be understood in a broad sense.”43
D. The Crime of Aggression as in Article 8bis of the Rome Statute
The drafters of the Kampala amendments on the crime of aggression agreed on their own definition in the early stages of the negotiations and did not significantly change it through the process.44 That definition differs to those of the other three core crimes insofar neither of those know any limitation to the circle of possible perpetrators.45
I. The Structure of the Modern Crime of Aggression
As Article 8bis(1) of the Rome Statute stipulates, the perpetration of a crime of aggression (committed by a person) requires beforehand the occurrence of an act of aggression
33 Schmitt (n 13) 63. For a detailed analysis of Schmitt’s opinion see Valentin Jeutner, ‘Pirates in Suits: Carl Schmitt, “Ordinary Businessmen” and Crimes of Aggression’ (2019) 88 Nordic Journal of International Law 459.
34 14 France v Roechling et al 1109 Emphasis added.
35 8 Farben Case (n 27) 1124.
36 8 ibid 1125.
37 8 ibid 1126; Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (1st edn, Oxford University Press 2012) 184–185.
38 11 US v von Leeb et al [1947] NMT Case No. 72 489 Emphasis added.
39 3 US v Altstoetter et al [1947] NMT Case No. 8 3; Kai Ambos, Der Allgemeine Teil Des Völkerstrafrechts : Ansätze Einer Dogmatisierung (Duncker & Humblot 2002) 93–94.
40 International Law Commission, ‘Draft Code of Crimes against the Peace and Security of Mankind’ [1996] Yearbook of the International Law Commission 15.
41 Emphasis added.
42 International Law Commission (n 40) 43.
43 ibid.
44 Special Working Group on the Crime of Aggression, ‘Discussion Paper Proposed by the Coordinator’, ASP Official Records, ICC-ASP/2/10 (1999) 234; Astrid Reisinger Coracini and Pål Wrange, ‘The Specificity of the Crime of Aggression’ in Claus Kress and Stefan Barriga (eds), The Crime of Aggression: A Commentary (Cambridge University Press 2016) 309.
45 Robert Heinsch, ‘The Crime of Aggression after Kampala: Success or Burden for the Future Gojil Focus: ICC Review Conference’ (2010) 2 Goettingen Journal of International Law 713, 722.
(committed by a state) which is then defined in detail in paragraph 2.46 The definition of the state element is just a verbatim reproduction of UNGA Resolution 3314 because it already shared consensus between the state community.47 Therefore the commission of an act of aggression is limited to states only.48
In order to prevent the prosecution of every soldier who was sent to war by their state, Article 8bis(1) of the Rome Statute introduces the leadership clause.49 This ensures the sufficient link between the state conduct as a prerequisite of the crime of aggression and the perpetrator’s individual conduct.
II. Contemporary Discussion of the Leadership Requirement
Reading the Rome Statute, the words “shape or influence”do not appear. This by no means suggests the abandonment of the leadership character of the crime of aggression. It continues to be a leadership crime.50 Besides the definition of the crime according to Article 8bis of the Rome Statute, Article 25(3bis) of the Rome Statute as well as Element 2 of the Elements of Crimes to the crime of aggression contain a word-by-word repetition of the leadership requirement. It limits the circle of possible perpetrators to “a person in a position effectively to exercise control over or to direct the political or military action of the State”. The term “control or direct” has replaced the formula of “shape or influence”.51 Careful consideration should be given to the interpretation of this leadership requirement. Article 25(3bis) of the Rome Statute stipulates its application to the differentiated model of participation. Thus, a definition must fit to possible perpetrators as well as accomplices.52
The use of the word “effectively” indicates that a de facto position is sufficient and does not limit prosecution to people in a de jure position of power.53 It thereby extends the scope beyond the group of formal government officials and covers industrial or religious leaders.54 The question arises whether a government counsel is able to maintain enough influence to be seen equally as a leader.
1. “Shape or Influence” Equals “Control or Direct”
This question is to be answered in the affirmative if Nuremberg’s “shape or influence” equals Kampala’s “control or direct”. Being a treaty, the Rome Statute has to be interpreted in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT).55 The first step therefore is to determine the ordinary meaning of the terms used. According to the Oxford dictionary, the word “control” means “[t]he power to influence or direct people’s behaviour or the course of events”,56 whereas “to direct” means to “[c]ontrol the operations of” something.57 One term defining the other might lead to the conclusion that they describe virtually the same action. However, it has been suggested that the “to control” limb is to be understood as a slightly more passive role by supervising in the background while the “to direct” limb requires a more active role.58 Since the terms are used alternatively, it is sufficient to fulfil one option or the other. If directing something means to exercise control and therefore to have the power to influence an action, then a sufficient link between the “shape or influence” and the “control or direct” standard seems to have been established. Some delegations have in fact taken this view during the drafting process.59 Thus, the preparatory work seems to confirm this finding as intended by Article 32 of the VCLT.
The object and purpose of the Rome Statute is evidenced by its preamble. One goal of the Court is to “put an end to impunity”60. This might favour a wide interpretation enabling the Court to prosecute as many as possible of those responsible in order to reach that goal. This does not necessarily contradict the leadership character of the crime of aggression, because it nonetheless limits the scope of the prosecutions. As evidenced by the NMT’s judgements, the ordinary soldier does not have the “power to shape or influence” an aggressive policy. Neither does it extends the Court’s powers beyond reasonableness.
It has been suggested that the term “control” does not cover mere influence on a state’s policy whereas the term “direct” does.61 This is so because the control limb was modelled closer to the Nuremberg precedent which focused on a strictly bureaucratic system of leadership envisaged by the
46 ibid 720; Zimmermann and Freiburg-Braun (n 3) para 201; Yoram Dinstein, ‘Aggression’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Max Planck Encyclopedia of Public International Law [MPEPIL] 2015) para 43.
47 McDougall (n 8) 85–86.
48 Astrid Reisinger Coracini and Pål Wrange (n 44) 312.
49 ‘Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, Held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, New Jersey, United States, from 13 to 15 June 2005 (ICC-ASP/4/SWGCA/INF.1)’ para 19; Astrid Reisinger Coracini and Pål Wrange (n 44) 311; Volker Nerlich, ‘The Crime of Aggression and Modes of Liability – Is There Room Only for Principals?’ 58 Harvard International Law Journal (Online) 44.
50 Special Working Group on the Crime of Aggression, ‘June 2006 Report (ICC-ASP/5/SWGCA/INF.1)’ (2006) ICC-ASP/5/SWGCA/INF.1 para 88; Claus Kress, ‘The Crime of Aggression before the First Review of the ICC Statute’ (2007) 20 Leiden Journal of International Law 851, 851; Ambos, ‘The Crime of Aggression after Kampala’ (n 2) 489.
51 Nikola R Hajdin, ‘Responsibility of Private Individuals for Complicity in a War of Aggression’ (2022) 116 American Journal of International Law 788, 792.
52 Nikola R Hajdin, ‘Aggression and Criminal Responsibility (for Whom?)’ [2018] Opinio Juris \http://opiniojuris.org/2018/04/09/33521/ accessed 30 May 2024.
53 Zimmermann and Freiburg-Braun (n 11) para 36; Hannah Lea Pfeiffer, The Crime of Aggression and the Participation Model of the Rome Statute of the International Criminal Court (2017) 166; Roger S Clark, ‘Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court’ (2002) 15 Leiden Journal of International Law 859, 873.
54 Special Working Group on the Crime of Aggression, ‘February 2009 Report (ICC-ASP/7/20/Add.1)’ (2009) ICC-ASP/7/20/Add.1 para 25; Ambos, ‘The Crime of Aggression after Kampala’ (n 2) 490; Kai Ambos, Treatise on International Criminal Law: Volume I: Foundations and General Part, vol 1 (2nd edn, OUP Oxford 2021) 246.
55 Situation in the Democratic Republic of the Congo Judgment on the Prosecutor’s Application for Extraordinary Review of the Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal [2006] ICC ICC-01/04-168 [40]; Schabas (n 27) 520.
56 Catherine Soanes (ed), Oxford English Dictionairy (5th edn, Oxford University Press 2002) 178.
57 ibid 232.
58 Zimmermann and Freiburg-Braun (n 11) para 38.
59 Special Working Group on the Crime of Aggression, ‘December 2007 Report (ICC-ASP/6/SWGCA/1)’ (2007) para 9.
60 Paragraph 5 of the Statute’s preamble.
61 Weisbord (n 5) 48–49.
German sociologist Max Weber in the early 20th century.62 Proposed changes to the leadership clauses’ formulation – for example, adding an alternative focusing on influence –63 did not find their way into the Statute. Therefore, according to one author, judges needed to read the term “influence” into the direct limb to capture post-bureaucratic leaders who do not hold formal positions.64 When government counsels provide a legal opinion which has a causal link to their government’s action, they influence the outcome of this decision-making process and thereby take a directing role.
Another argument speaking in favour of a wide scope of leadership is the lack of legal control of government attorneys and their greater responsibility towards not only the government as their client, but the whole people of their country.65 If their legal advice is directed to an act of aggression and transformed thereto, criminal proceedings can serve as a control instrument where disciplinal measures do not suffice. At the same time, the prospect of such proceeding might have a deterrent effect as seen by preventive theories on the justification of punishment.66 Additionally, such proceedings on the international level could facilitate clearing up the crimes on the national level.67
2. “Control or Direct” Is More Restrictive than “Shape or Influence”
There are strong voices in the scholarly debate stating that the “control or direct” standard rather is “a retreat from Nuremberg” and therefore a stricter standard than the one of “control or direct”.68
There is another legal instrument which uses the standard of “control and direct”. Article 17 of the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA) deals with the attribution of one state’s internationally wrongful act to another. According to Article 17 ARSIWA, the latter state is responsible under international law for the first state’s act (for example,an act of aggression) if it “controls or directs another state in the commission of an internationally wrongful act”. The ILC’s commentary to the ARSIWA elaborates on this standard stating:
“the term ‘controls’ refers to cases of domination over the commission of wrongful conduct and not simply the exercise of oversight, still less mere influence or concern. Similarly, the word ‘directs’ does not encompass mere incitement or suggestion but rather connotes actual direction of an operative kind.”69
The ILC’s clarification is evidence that “control or direct” is meant to be quite a strict standard.70 This interpretation also finds support in the travaux préparatoires. The delegates discussed whether “control or direct” really covered all the Nuremberg precedents and its “shape or influence” standard or whether a “widening” of the proposed clause was necessary.71 According to the Special Working Group on the Crime of Aggression, only a person in a position of “decisive influence” can be considered a leader.72
Another argument lies within the actus reus of the crime of aggression as in Article 8bis(1) of the Rome Statute, according to which the “planning, preparation, initiation or execution […] of an act of aggression” renders a person liable. This formulation closely corresponds to Article 6a of the IMT Charter. The phrasing “waging” a war of aggression was changed to “execute” an act of aggression, without changing the substance of the provision.73 From that substance, the crime’s nature as a state crime, follows the justification for its leadership character. The conduct verbs used in Article 8bis(1) of the Rome Statute describe the conduct of a leader with a certain position of authority.74 The leader is elected to make decisions and create policies. Especially the first alternative (“planning”) raises interests regarding the issue at hand. If “control or direct” equalled “shape or influence”, the leadership requirement would be obsolete in regard to this variation of the crime, because everyone who participates in the planning of an aggressive policy, shapes and influences that same aggressive policy.
During the past 75 years the world has changed. Classic Weberian theories do not reflect modern day democracies as well as they did with governments of the early 20th century. Many more people influence the states policy in a democratic society than in the totalitarian Nazi regime. Hence, the wide
62 ibid 44–45.
63 ibid 48.
64 ibid 48–49.
65 Richard B Bilder and Detlev F Vagts, ‘Speaking Law to Power: Lawyers and Torture’ (2004) 98 American Journal of International Law 689, 693.
66 Claus Roxin and Luís Greco, Strafrecht – Allgemeiner Teil Grundlagen – Der Aufbau Der Verbrechenslehre (5th edn, CH Beck 2020) 134–135. Concurring Jennifer Trahan, ‘Historic Activation of the International Criminal Court’s Crime of Aggression: The Assembly of State Parties Decide to Activate the ICC’s 4th Crime’ International Judicial Monitor. Critical Whiting (n 5).
67 Mark Drumbl, ‘The Push to Criminalize Aggression: Something Lost Amid the Gains’ (2009) 41 Case Western Reserve Journal of International Law 291, 317.
68 Heller (n 27) 479–480; Robert Cryer and others, An Introduction to International Criminal Law and Procedure (3rd edn, Cambridge Univ Press 2014) 314; Drumbl (n 67) 316; Stefan Barriga, ‘Against the Odds: The Results of the Special Working Group on the Crime of Aggression’ in Stefan (editor) Barriga, Wolfgang (editor) Danspeckgruber and Christian (editor) Wenaweser, The Princeton Process on the Crime of Aggression (1st edn, Lynne Rienner Publishers 2009) 8; McDougall (n 8) 231; Ambos, Treatise on International Criminal Law The Crimes and Sentencing (n 10) 241.
69 International Law Commission, ‘Commentary to the Articles on State Responsibility of International Wrongful Acts’ Article 17(7). Emphasis added.
70 Heller (n 27) 491.
71 Special Working Group on the Crime of Aggression,‘June 2007 Report (ICC-ASP/6/SWGCA/INF.1)’(2007) ICC-ASP/6/SWGCA/INF.1 para 12.
72 ‘Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression, Held at the Liechtenstein Institute on Self-Determination, Woodrow Wilson School, Princeton University, New Jersey, United States, from 21 to 23 June 2004 (ICC-ASP/3/SWGCA/INF.1)’ para 49 \https://lup.lub.lu.se/student-papers/search/publication/7855313 accessed 23 September 2023; Hajdin, ‘Responsibility of Private Individuals for Complicity in a War of Aggression’ (n 51) 793.
73 Zimmermann and Freiburg-Braun (n 11) para 21; Weisbord (n 5) 49;Schabas (n 27) 308.
74 Irina Kaye Muller-Schieke, ‘Defining the Crime of Aggression Under the Statute of the International Criminal Court’ (2001) 14 Leiden Journal of International Law 409, 419; Astrid Reisinger Coracini and Pål Wrange (n 44) 310–311 who state that the planning and preparation of other core crimes such as genocide require such a position as well, but fail to recognise that planning and preparation are not part of the other crimes’ definitions.
“shape or influence” standard seems too broad today, as it would capture an excessively high number of individuals.75 However, evidence that even the NMT was aware that influencing goes beyond controlling can be found in its judgements. In the Ministries case, the Tribunal convicted the defendant Ernst von Weizsäcker who held the position of the secretary of state and later of an ambassador. Applying the standard of “shape or influence” for his involvement in aggressive actions against Czechoslovakia, they held him accountable even though ‘his part was not a controlling one’76. The defendants in the High Command case were high ranked military officials who certainly influenced the regime’s aggressive war when they drew up war strategies. The aggressive plans however did not originate from them, as they rather implemented them.77 They were all acquitted, because the mere implementation of an aggressive policy did not suffice to attract criminal liability.78 If a government asks a legal counsel to find arguments for its use of force, which it plans on using no matter what, the lawyer might find himself in a similar position.
A legal counsel writing an opinion that a specific course of action might be illegal influences the policy even if the decision makers listen to him and adopt their plans to a slightly different (for instance, smaller scaled) yet still potentially aggressive act. If the adviser backs the undertaking with valid legal arguments in a legal grey area (for example, humanitarian intervention), but later judges find that the counterarguments outweigh them, he still influenced the decision. The question to determine criminal responsibility under Art. 8bis of the Rome Statute is whether the influence was decisive.79 This cannot be determined on an abstract level but only by a case-by-case assessment. If the legal memorandum is part of a debate in parliament and a MPs freely vote in favour of the aggressive plans, the decision did not lie with the legal advisor. In this case he did not exercise decisive control over the process. In a case where the legal advice is given during an ongoing military operation as its potential illegality is the only obstacle to the execution of a military move, giving the legal green light can be seen as a necessary prerequisite of the execution. The adviser is the person who effectively makes the decision of continuing or not. In this case the legal counsel would be more likely held criminally liable as a secondary participant only. A stricter interpretation of Art. 8bis of the Rome Statute could otherwise lead to the complete lack of criminal liability of a civil servant.80
An expert opinion, which is later developed into the policy itself (similar to the case of Yoo and Bybee), would not just satisfy the “shape or influence” standard but the ILC’s definition of “control” as well.81
E. Conclusion
No one knows how much time will pass until the first trial for a crime of aggression takes place. This article has shown that since the first court appearance of crimes against peace, the drafters of the Kampala amendments have raised the bar. They replaced the NMT’s broad “shape or influence” standard by the stricter “control or direct” standard. When it comes to the role of government counsels, a case-by-case assessment will be warranted. The characteristics of the constitutional environment of the aggressor state must be considered. What position did the counsel fill? Was there any legal debate in a committee or even parliament or lies the military discretion (de facto or de jure) at one person? Prosecutors should also focus on the question whether the counsel created the aggressive policy or merely executed it. Further, if the decision to launch a military operation is largely based on his legal opinion on the lawfulness of such action and would not have been taken the same way without it, the Court might find that he exercised sufficient control over the decision-making process to render him criminally responsible. Hence, the OTP will have to carefully chose the defendants if it wants to prevent the leadership clause from risking its success rate.
75 Barriga (n 68) 22; Zimmermann and Freiburg-Braun (n 11) para 40; Michael J Glennon, ‘The Blank-Prose Crime of Aggression’ (2010) 35 Yale Journal of International Law 71, 99–100; Ambos, Treatise on International Criminal Law The Crimes and Sentencing (n 10) 241.
76 14 Ministries Case (n 24) 354.
77 Cryer and others (n 68) 313.
78 12 Ministries Case (n 38) 486.
79 Hajdin, ‘Responsibility of Private Individuals for Complicity in a War of Aggression’ (n 51) 795; Hajdin, ‘Individual Criminal Responsibility for the Crime of Aggression’ (n 30) 51.
80 Bock (n 3) 1449–1450.
81 Glennon (n 75) 99–100.