In May, states party to the International Criminal Court (and other observers) will gather in Uganda to discuss the 1998 Rome Statute; one topic on the agenda is the definition of a crime of aggression. The crime of aggression was included in the Rome Statute, but a lack of consensus over definition prevented the ICC having jurisdiction over the crime thus far.
The United States, following World War Two, famously included the inclusion of a crime of aggression in the Nuremburg and Tokyo Trials. Robert Jackson, Chief Prosecutor for the US, stated: "to initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime..." However, in a situation that is all too familiar, the shoe does not fit so well when it is on the other foot.
Articles in the New York Times and Washington Post argue that jurisdiction over crimes of aggression would be terrible for pragmatic and political reasons. However, it is evident - both explicitly and implicitly - that fear of judicial scrutiny for US aggression lies at the heart of their arguments.
Both articles assert that jurisdiction over the crime of aggression would be too difficult because one could never successfully enumerate the grounds on which the crime occurs. And indeed, their arguments carry significant truths. There will be considerable difficulties in establishing how to assign individual responsibility for group actions. It will be immensely complex to determine the definition of aggression, and when an act of aggression becomes a crime of aggression. And formulating the relationship between the Security Council and ICC's jurisdiction over crimes of aggression will be far from easy.
However, these are obstacles to be overcome not dismissed. Legal systems across the world have always been plagued by difficulties of definition, but no one gave up prosecuting murder because of the difficulty in defining intent.
ICC signatories are doing wonderful work to build consensus on the parameters of the crime of aggression. One particular definition of the crime of aggression, I believe, is particularly praiseworthy:
"For the purposes of this Statute, the crime of aggression is committed by a person who is in a position of exercising control or capable of directing political/military actions in his State, against another State, or depriving other peoples of their rights to self-determination, freedom and independence, in contravention of the Charter of the United Nations, by resorting to armed force to threaten or to violate the sovereignty, territorial integrity of political independence of that State or the inalienable rights of those people."
Glennon appears unaware that "international equilibrium" is bollixed because of unchecked, unilateral acts of aggression, not the other way round. Universal judicial scrutiny is fundamental if unjust, illegal and destructive acts of aggression, like the attack on Iraq, are to be prevented in the future.
At the heart of US opposition to the ICC and jurisdiction over crimes of aggression is Glennon's worry of "good faith" practitioners being prosecuted. As Stephen Rademaker argues in the WP article: "Washington has always been the sole judge of whether a particular use of force was justified under international law." If the ICC were to take over this role, the US ability to act aggressively would be considerably curtailed. If the structures to investigate crimes of aggression had existed in 2003, would Cheney, Bush and Blair have acted so rashly in Iraq?
Contrary to Rademaker and Glennon, I believe jurisdiction over crimes of aggression will not inundate the ICC with prosecutions; that is not the predominant aim. Rather, jurisdiction over crimes of aggression will reinforce Benjamin Ferencz's wise words that "war-making is no longer a national right" and that no country can act with impunity.