| Crime of Aggression |  | |
Derechos | Equipo Nizkor
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| Crime of Aggression | | |
Derechos | Equipo Nizkor
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Jun10
National Legislation on Individual Responsibility for Conduct Amounting to Aggression
A. Indirect Enforcement of Crimes Under International Law and the Principle of Complementarity
B. Method of Research2. Norms Implementing the Crime of Aggression under International Law
A. Leadership Element
B. The Individual’s Conduct
C. Act of Aggression by a State
D. Jurisdiction of Domestic Courts to Enforce the Crime of Aggression3. Norms Criminalizing Conduct, which Includes Elements of the Crime of Aggression
A. Preparation of a War of Aggression
B. Incitement to a War of Aggression and Propaganda of War
C. Waging a War, Conspiracy and Other Treasonable Offences
D. Hostile Acts1. Acts Committed With the Intent to Provoke War
2. Acts That Cause or May Lead to the Outbreak of War
3. Acts Not Authorized by the Government
Astrid Reisinger Coracini |*|
A. Indirect Enforcement of Crimes Under International Law and the Principle of Complementarity
When the International Law Commission (ILC) was about to finalize its Draft Code of Crimes against the Peace and Security of Mankind, it reported to the General Assembly 'that the crime of aggression was inherently unsuitable for trial by national courts and should instead be dealt with only by an international court'. |1| This view of some ILC members was expressed in the context of the question of whether or not a national court was able to adjudicate that a state had committed an act of aggression by using armed force against another state. Such a determination was considered to be contrary to the principle of international law par in parem non habet iurisdictionem and to bear serious implications for international relations and international peace and security. |2| Consequently, the 1996 ILC Draft Code introduced two jurisdictional regimes. It provided for concurrent jurisdiction of states and an international criminal court for genocide, crimes against humanity, war crimes, as well as crimes against United Nations and associated personnel, whereby states were obliged to establish universal jurisdiction under domestic law for these crimes. |3| Jurisdiction over the crime of aggression |4| was exclusively reserved to an international criminal court 'with the singular exception of the national jurisdiction of the state which has committed aggression over its own nationals'. |5| Only in this case national courts were not required to consider an act of aggression by another state. Prosecution of a state's own leaders who participated in an act of aggression was deemed useful, e.g., during a process of national reconciliation. Should these national court proceedings fail to meet the necessary standard of independence and impartiality, a subsequent trial by an international criminal court was not precluded according to the principle of ne bis in idem as defined in the 1996 ILC Draft Code. |6|
Different from that approach, the Rome Statute is based on the primary responsibility of states to prosecute crimes under international law. The crime of aggression, being listed as one category of crimes within the jurisdiction of the International Criminal Court (ICC or Court), does not require deviating procedures in respect of the Statute's general framework. This view has also been endorsed by the Special Working Group on the Crime of Aggression, which reached agreement that 'Articles 17, 18 and 19 were applicable in their current wording' to the crime of aggression. |7| States upon becoming a Party to the Statute have accepted the Court's jurisdiction for all crimes listed in Article 5 ICCSt. |8| Also in the case of aggression, the complementary jurisdiction of the Court only steps in if states do not genuinely exercise the ius puniendi of the international community as a whole. |9| In this context, the lacuna of Article 20(3) ICCSt should be kept in mind. While national trials for any crime under the jurisdiction of the ICC are barred once a person has been convicted or acquitted by the Court, |10| the current protection of ne bis in idem regarding subsequent trials before the ICC after national prosecutions is limited to conduct defined as genocide, crimes against humanity and war crimes. |11| Accordingly, the ICC would have a wider power to control and admit national cases regarding charges of aggression, even if none of the exceptions listed in Article 20(3) ICCSt applied. The Special Working Group on the Crime of Aggression however, clarified that once the provision of the crime of aggression is adopted, reference to this category of crime will need to be included into the chapeau of paragraph 3. |12|
Despite the applicability of the complementarity regime to charges of aggression, national prosecution may be precluded in specific cases by prerogatives of international law, political considerations or factual circumstances. In the language of Article 17 ICCSt, a state may often find itself 'unable or unwilling' to prosecute an individual for the crime of aggression. |13| For instance, a state may not be in a position to prosecute because its domestic criminal code does not provide for adequate offences and international law is not directly applicable. Even if customary international law forms part of a national legal system, courts may declare the matter as non-justiciable according to the political question doctrine. |14| Further potential obstacles to prosecution, in particular high officials of a foreign state, in a specific case may include difficulties in obtaining evidence or getting hold of the accused, or concern immunities under international law. |15| Even if it were in the position to carry out a prosecution, a victim state may refrain from trying alleged perpetrators for aggression out of fear of the aggressor state. |16| Lastly, national proceedings, if carried out, may not satisfy the plea to bring alleged perpetrators to justice. One may think of a sham trial conducted in an aggressor state against its former leaders, |17| or a victorious state that had previously been a victim of aggression and commences proceedings which are not being 'conducted independently or impartially', depriving an alleged perpetrator of his or her rights. |18| Despite these potential perils, states should not a priori be suspected of being unwilling to genuinely prosecute. As soon as a provision on aggression is adopted, their performance will be under the scrutiny of the Court, whose complementarity regime was established particularly to counter historic patterns of impunity and the detrimental consequences of victor's justice. |19|
This chapter will examine how existing national legislation fits into the framework according to which national prosecutions of the crime of aggression will be evaluated, once the Court will be able to exercise its jurisdiction over the crime of aggression. |20|
This research deals exclusively with statutory legislation. It does not tackle the question of whether or not the crime of aggression under customary international law forms an integral part of certain legal systems and may otherwise be directly applicable. |21| To collect material, some 90 national criminal codes and criminal law acts were analysed. |22| Main sources were online information provided by national ministries of justice and databases of regional organizations and research institutions. |23| In addition, with regard to some countries, a study undertaken by the Max Planck Institute for Foreign and International Criminal Law in Freiburg on National Prosecution of International Crimes was relied upon. |24| This survey was particularly helpful to get an insight into national academic discourse and commentary literature. Due to language barriers and difficulties of acquiring reliable translations, a number of national codes could not be taken into account. Therefore, the survey has to be seen as illustrative, not exhaustive. Given the limited access to authentic sources and secondary literature, this chapter will not engage in a detailed analysis of every single national provision. It will instead give examples, provide an overview of the main features of relevant provisions and analyse them with a view to the definition of the crime of aggression under international law. |25|
This chapter will first focus on states, which have implemented legislation in order to enforce the crime of aggression under customary international law before domestic courts, thereby aiming at protecting legal values of the international community as a whole. In that context, the respective national definitions will be scrutinized in the light of the current state of the negotiations on codifying the crime of aggression for adjudication before the ICC. Furthermore, it will be examined under what circumstances these states can establish jurisdiction to adjudicate and are actually in a position to prosecute this crime. Secondly, the chapter will deal with conduct criminalized under domestic law, primarily aiming at protecting national interests, which falls short of the crime of aggression under international law but includes aspects of its definition. Regarding the second category, the question, whether any of these crimes may contribute to national prosecution under the complementarity regime of the Rome Statute will be analysed.
With a view to the protected legal values, these two categories partly overlap. The crime of aggression, as all other crimes under international law, ultimately seeks to protect 'international peace and security' or, in the words of the Rome Statute, 'the peace, security and well-being of the world'. |26| Another facet of the crime of aggression is that it protects the 'sovereignty, territorial integrity or political independence' |27| of a state, interests which form the cornerstones of the international system. At the same time, every national state has a fundamental interest to protect its own sovereignty, territorial integrity and political independence. Accordingly, most states protect these values as ultima ratio also by means of criminal law. In that sense they can be considered as national legal values. The structure of this survey will follow the categorization introduced by national legislatures. It will be interesting to see that, as a consequence of the twofold nature of the protected legal values, similar conduct which is implemented as a crime under international law in some states is criminalized as a domestic crime in others. |28|
2. Norms Implementing the Crime of Aggression Under International Law
From 90 national criminal codes reviewed, statutory provisions relating to the crime of aggression under international law were detected in some 25 countries, |29| predominately Eastern European and Central Asian states. The relevant norms carry different designations. Many provisions are simply titled 'war of aggression', 'aggressive war', |30| or 'aggression'. |31| The Latvian criminal code uses the term 'crimes against peace'. |32| In the majority of cases the designation of the crime mentions particular modes of participation. These range from very specific acts, such as 'instigating an aggressive war', |33| 'incitement to war', |34| or 'stirring up of an armed conflict' |35| to the complete spectrum of 'planning, preparing, unleashing, or waging an aggressive war'. |36|
Provisions on the crime of aggression are located in such chapters of national criminal codes which comprise crimes under international law enforceable by domestic courts. The titles of these chapters mirror the international legal values they seek to protect. Chapter XIII of the Croatian Criminal Code, for instance, which also includes individual criminal responsibility for 'war of aggression' (Article 157), refers explicitly to 'criminal offences against values protected by international law'. Other criminal codes similarly refer to crimes against 'rights guaranteed under international law', crimes against the 'international legal order' or generally to crimes against 'international law'. |37| Frequently, references to the ILC Draft Code of 'crimes against the peace and security of mankind' can be found. |38| Next to 'peace' and 'security', the category 'humanity' is listed as a protected interest in some cases. |39| At least twice, the term 'crimes against humanity' serves as a generic denomination for crimes under international law, including crimes against peace. |40| Occasionally, the chapter headings simply list those crimes under international law which are subsequently defined. |41|
The majority of national criminal codes, however, do not contain the crime of aggression under international law. In same countries, respective legislative proposals were discussed |42| but rejected, e.g., in Sweden, due to lack of an agreed definition of the crime on the international level, |43| or in Finland, because aggression was understood as a matter between states. |44|
At first glance, it is striking that national provisions scarcely refer to the one component of the crime of aggression over which there seems to be a broad international consensus: the leadership element. Although there has been some discussion at the international level of whether the leadership element was an integral part of the definition of the crime (definitional element), or whether it was to be understood as restricting the jurisdiction of the ICC (jurisdictional element), |45| it is generally understood that only high-ranking officials, persons who are in a decision-making position in their country, shall bear responsibility for the crime of aggression. |46| The established qualification of a potential perpetrator of the crime of aggression as 'being in a position effectively to exercise control over or to direct the political or military action of a state' originates from the 2002 Discussion Paper and has since remained unchanged. |47|
None of those national norms, which strictly relate to conduct punishable under the Charter of the International Military Tribunals of Nuremberg and Tokyo, |48| expressly limits the circle of potential perpetrators to certain groups of individuals. Legal commentaries to these provisions offer the following guidelines for interpretation. First, since the national norm implements a crime under international law, it has to be read in accordance with the customary law definition of the crime. Second, a potential perpetrator of the crime of aggression has to be capable and in the position to carry out the actus reus. Therefore, it is suggested that only persons who have a leading position in the military or the political decision-making bodies are per se capable of perpetrating the crime of aggression, but not, for instance, persons at the bottom of the chain of command, who are executing military operations. |49|
An implicit reference to criminal responsibility of persons in a superior position can be found in the criminal codes of Montenegro and Serbia. Next to any person who 'calls for or instigates aggressive war', 'anyone who orders waging war' |50| is liable for punishment. Comparably, the Croatian criminal code specifies waging a war of aggression as 'commanding an armed action of one state against the sovereignty, territorial integrity or political independence of another state'. The conduct verbs 'order' and 'command' imply the existence of a hierarchical, superior-subordinate relationship and thus limit criminal responsibility to persons in a position to give such orders or commands. |51|
In addition, however, the Croatian Criminal Code provides equal punishment for a person who wages aggressive war and 'whoever acts according to a command for action from armed forces or para-military armed forces for the purpose of waging a war of aggression'. |52| This norm is consistent with the general principle of international criminal law according to which acting pursuant to an order of a government or of a superior does not relieve a person from criminal responsibility for the perpetration of a core crime. |53| Yet, if extended to anyone within a chain of command, the provision challenges the ratio behind the limitation of the circle of perpetrators for the crime of aggression on the international level, which is to exclude ordinary soldiers from criminal responsibility for acts they may not be in a position to judge as being in conformity with or against international law. |54|
The leadership element is more frequently referred to with regard to conduct going beyond the Nuremberg acts. Estonia, for instance, expressly punishes 'a representative of the state who threatens to start a war of aggression'. |55| Other states, in the context of the crime of war propaganda, public incitement, or calls for a war of aggression consider a perpetrator's high official position as an aggravating circumstance for punishment. |56|
The fact that a majority of national provisions on aggression lack explicit reference to the leadership element, as well as the suggested interpretation of national laws on aggression in accordance with international law, demands further consideration of its customary law nature.
The leadership element can barely be traced in definitions and draft definitions of the crime of aggression before the 1991 ILC Draft Code. The definition of crimes against peace in the International Military Tribunal (IMT) and the International Military Tribunal for the Far East (IMTFE) Charter did not restrict individual criminal responsibility to a certain circle of perpetrators. |57| Albeit, the Tribunals' jurisdiction was limited per definition to 'the trial and punishment of the major war criminals of the European Axis countries' and 'in the Far East' respectively. |58| To determine criminal responsibility for crimes against peace, the military Tribunals relied on the alleged perpetrator's high position in government, military, politics or as a state official. The determination of such high position, however, was not based on formal requirements, but foremost on a person's ability to actually exercise power in a leadership, policy- or decision-making, or otherwise influencing position. |59| These criteria do not necessarily constitute a limitation of the circle of perpetrators, but could equally be seen as a manifestation of the principle of personal guilt. Nonetheless, Control Council Law No. 10 subsequently confined responsibility for crimes against peace to persons who 'held a high political, civil or military (including General Staff) position in Germany or one of its Allies, cobelligerents or satellites or held high position in the financial, industrial or economic life of any such country'. |60|
The ILC's formulation of the Nuremberg principles, |61| literally repeats the definition of crimes against peace in the Nuremberg Charter. It does not limit the circle of perpetrators, but the ILC Commentary explains that 'waging of a war of aggression' was understood as to 'refer only to high-ranking military personnel and high state officials'. |62| The 1951 and 1954 versions of the ILC Draft Code again do not restrict the group of perpetrators according to their position. Hence, they make clear that since aggression can only be committed by a state, only state officials qualify as principal offenders of the crime of aggression. |63| Nonetheless, private individuals could participate in the commission of the crimes as accessories. |64|
The discussion about the circle of perpetrators of the crime of aggression in the second phase of the ILC's elaboration of a draft code was dominated by the question of whether only government officials or also other persons bearing political and military responsibility or even private persons 'who place their economic or financial power at the disposal of the authors of the aggression' should be criminally responsible. |65| The question had not yet been resolved when the ILC provisionally adopted a draft Article on aggression in 1988. |66| With the lapidary explanation that 'the Commission either added an introductory paragraph or slightly recast the Articles to cover the question of attributing the crimes to individuals and of punishment', |67| the 1991 and the 1996 ILC Draft Code expressly limited individual criminal responsibility for the crime of aggression to leaders or organizers. |68| To appease critical voices, |69| the ILC Commentary clarified that the terms 'leaders' or 'organizers' 'must be understood in the broad sense, i.e., as referring, in addition to the members of a government, to persons occupying high-level posts in the military, the diplomatic corps, political parties and industry, as recognized by the Nuremberg Tribunal'. |70|
This overview shows that the leadership element has not necessarily constituted an explicit part of the definition of the crime of aggression. At the same time, it has evidently been understood from the very beginning as an implicit component of the definition of crime. The difficulty therefore lies in the codification of criteria exemplifying the personal authority or power of an offender to be in a position potentially to play a decisive role in committing aggression without narrowing down the circle or perpetrators. |71| Pending the final outcome of the work of the Special Working Group on the Crime of Aggression and the adoption of a provision of aggression, the formulation of the leadership element, though certainly constituting a strong hint as to the scope of this element under customary law, may leave open a margin for states to enlarge the circle of perpetrators under domestic law, in particular with a view to the leadership requirement for secondary offenders.
Structurally, the examined national provisions define the crime of aggression as the participation of an individual perpetrator in an act of aggression by a state. |72| In that aspect, they correspond to the definition of crimes against the peace as contained in the IMT Charter and are in conformity with the ongoing negotiations on the international level.
As regards the definition of the individual's conduct, national laws to a large extent implement the modes of participation and stages of criminal responsibility contained in the IMT Charter. Again, this practice is in line with the international negotiations. Although the Preparatory Commission and the Special Working Group on the Crime of Aggression have been discussing various variants, late developments indicate a revival of the Nuremberg formula. By listing specific modes of perpetration in the definition of the crime itself, the provisions seem to follow what has been described as the 'monistic approach'. |73| However, despite the use of specific conduct verbs, none of the examined criminal codes expressly excludes the application of its general part. It is therefore assumed that the provisions of the respective general part apply and potential overlaps or contradictions, should they occur, would have to be sorted out by way of interpretation. |74|
In accordance with individual conduct criminalized by the IMT Charter, |75| a majority of states that have implemented the crime of aggression declare punishable the classic canon of 'planning, |76| preparation, |77| initiation |78| or waging |79| of a war of aggression or a war in violation of international treaties, agreements or assurances'. |80| While many countries implemented all four modes of perpetration, others were selective. |81| In particular, it is noteworthy that some states do criminalize preparatory acts, but not the initiation or execution of an act of aggression as such. Fewer states included in their domestic definition of aggression 'participation in a common plan or conspiracy for the accomplishment of any of the foregoing'. |82| Yet, the absence of this mode of conduct is without prejudice to the application of a general conspiracy provision enshrined in the general part of a respective penal code.
In addition to the traditional modes of criminal responsibility for the crime of aggression, a number of states use conduct verbs going beyond the Nuremberg canon. The criminal codes of Montenegro and Serbia, for instance, provide punishment for a person who 'orders waging a war of aggression'. |83| Other criminal codes contain provisions criminalizing 'calls for', |84| 'instigation of', |85| 'public calls for', |86| or '(public) incitement of' |87| a war of aggression. The Latvian criminal code, for instance, incorporates instigation as an additional mode of participation in the definition of the crime of aggression. |88| Usually, however, these modes of perpetration are implemented as distinct unlawful acts, which complement |89| or substitute the traditional definition of the crime of aggression. |90| As a distinct category of crime, these definitions usually criminalize instigation or incitement as an inchoate offence. |91| The respective Bulgarian provision, for instance, reads: 'Who, directly or indirectly, through publications, speeches, radio or in any other way aims at provoking armed attack by one country to another shall be punished for war instigation by imprisonment of three to ten years.' |92|
Closely related to instigating or inciting an act of aggression as an inchoate crime, a number of states punish propaganda of war as a crime under international law. |93| These national provisions also stem from an international treaty obligation. Article 20(1) of the International Covenant on Civil and Political Rights (ICCPR) requires states to prohibit by law any propaganda for war. |94| The obligation includes the provision of appropriate sanctions, although they do not necessarily need to be of a penal nature. |95| As of today, 164 states have ratified or acceded to the ICCPR. |96| However, several states have made reservations or declarations with regard to Article 20. |97| A possible criminalization of war propaganda was also discussed in the context of the ILC Draft Code. The ILC did not include propaganda for war as a separate offence in its early versions of the Draft Code but understood such conduct to be covered by the inchoate crime of incitement according to Article 2(12) ILC Draft Code. |98|
As regards the mental element, the examined criminal codes provide for no specific rules. The actus reus, therefore, is to be conducted with the default mens rea provided for in the respective criminal code. No deviating degree of dolus, purpose going beyond the realization of the material elements, is required to meet the definition of the crime of aggression. |99| Purpose becomes of relevance only where incitement or propaganda of war are punishable as inchoate offences. In these cases, which do not demand the occurrence of a result of the criminal conduct, the criminality manifests itself particularly in the perpetrator's mens rea. |100|
Finally, a different type of norm merits attention. They do not claim to implement the crime of aggression nor fit the particular structure of this crime. However, they criminalize as crimes against international law conduct which may lead to an international war. |101| The Hungarian criminal code, for instance, criminalizes as a crime against peace the attempt to recruit military personnel. |102| The Cuban criminal code contains a crime of conscription or hostile acts against another state, conducted without the authorization of the government, with the purpose of exposing Cuba to the danger of a war. |103| Persons, who on Cuban territory commit acts which infringe the independence of a foreign state, its territorial integrity, or the stability and authority of its government, are equally liable for punishment. |104| Similarly, Venezuelan nationals and foreigners who on Venezuelan territory prepare or commit hostile acts to attack or invade a friendly or neutral nation on land or sea are liable for punishment. |105| The respective Panamanian provision again prescribes unauthorized conscription, rearmament or other hostile acts against another state, which expose Panama to the danger of war or the rupture of international relations. |106| Although the last mentioned provisions are specified as crimes against international law, they are to be seen in the primary national context of protecting the existence of the state. |107| Comparable, explicitly domestic offences can be found in various national criminal codes; they will be dealt with in more detail under 3.
C. Act of Aggression by a State
The prerequisite act of aggression by a state, conditio sine qua non for the establishment of individual criminal responsibility for the crime of aggression, is referred to as 'war of aggression' or 'aggressive war' in the majority of national provisions. |108| Some states use the term 'war' without further specification. |109| Others refer to 'military aggression', |110| 'armed conflict' |111| or 'military operations'. |112|
In this context, a commentator on the Polish criminal code clarifies that the notion 'war of aggression' has remained part of Polish law, despite the fact that the term 'war' was replaced by 'armed aggression' in international law. Notwithstanding the use of the traditional name, it is generally understood that Article 117(1) Polish Criminal Code on the crime of aggression comprises the initiation and waging of any international armed conflict in violation of international law. Only minor, sporadic and isolated cross-border use of force is considered to fall short of the definition of the crime. |113|
The vast majority of national provisions do not provide for any definition of the prerequisite act of aggression by a state, which forms a major element of the definition of the crime. Commentary literature suggests an interpretation in conformity with international law and particularly refers to General Assembly Resolution 3314. |114| In addition, Polish literature also cites the 1933 London Convention on the Definition of Aggression. |115| It is left to the competent national court to interpret the notion according to international law. Such judicial discretion is criticized by some authors as a rather atypical loophole in the light of the principle of legality. |116|
As a marginal hint, §91 of the Estonian criminal code specifies that a 'war of aggression' is 'directed by one state against another state'. A more detailed definition can only be found in Article 157(1) Croatian criminal code. This relatively new provision |117| combines a generic definition of an act of aggression by a state, which is based on Article 1 GA Resolution 3314, with a selection of acts listed in Article 3 of the same resolution:
(1) Whoever, regardless of whether a war has previously been declared or not, wages a war of aggression by commanding an armed action of one state against the sovereignty, territorial integrity or political independence of another state, so that such an action is performed by invasion or by an armed attack on its territory, aircraft or ships, or by the blockading of ports or shores or by the military occupation of the territory, or in some other way which denotes the forcible establishment of rule over such a state, shall be punished by imprisonment for not less than ten years or by long-term imprisonment.
(2) The same punishment as referred to in paragraph 1 of this Article shall be inflicted on whoever, for the purpose of waging a war of aggression of one state against another, commands or enables the sending of armed mercenary groups or other paramilitary armed forces into a state, so that these forces achieve the aims of a war of aggression. |118|
At first glance, Article 1 has similarities with a proposal on the definition of the crime of aggression that emerged as a potential compromise solution just before the Rome Conference. |119| However, the Croatian provision reaches further by reflecting acts of 'indirect aggression' according to Article 3(g) of the GA Definition of Aggression and including 'other ways' of establishment of forcible rule over a state. The latter may serve as a catch-all clause for those acts, listed in GA Resolution 3314, which are not expressly reflected, and also leaves open some space for interpretation regarding other potential ways to perform an act of aggression. By relying on GA Resolution 3314, Article 157 of the Croatian criminal code is in compliance with the ongoing negotiations on the international level. According to the Special Working Group's current approach all acts of aggression listed in Article 3 of the GA Definition of Aggression may qualify as a basis for individual criminal responsibility. |120|
Next to criminal responsibility for a war of aggression, §91 of the Estonian criminal code criminalizes participation in a 'war violating international agreements or security guarantees provided by the state'. |121| This additional basis for individual criminal responsibility enshrined in the IMT Charter has not received the same continuous attention as its counterpart 'war of aggression'. |122| The Nüremberg judgement did not invoke this basis for responsibility. But as the ILC elaborated, since the German war was judged as 'aggressive war', there was no need for the Tribunal to further examine whether it would also constitute a 'war in violation of international treaties, agreements, or assurances'. |123| Consequently, the ILC upheld the criminality of both acts of state in the Nuremberg principles. |124| In this context it is worthwhile to mention that Article 137 of the Bolivian criminal code similarly criminalizes the violation of certain types of international treaties, in particular agreements guaranteeing a truce, armistice or safe passage, as a crime against international law. |125|
With regard to the prerequisite act of state forming a basis for individual criminal responsibility for the crime of aggression, only Estonia goes beyond the acts enshrined in the Nüremberg Charter. Paragraph 91 of the Estonian criminal code renders liable 'a representative of the state who threatens to start a war of aggression'. |126|
D. Jurisdiction of Domestic Courts to Enforce the Crime of Aggression
The preceding examination has shown that a considerable number of states have implemented the crime of aggression under international law into domestic legislation. Relying on established drafting techniques, these definitions are formulated in a generic way. Read alone, they may appear applicable to any crime of aggression, committed by a national of any state, at any place. To evaluate the concrete ability of domestic courts to give effect to these norms, the following section takes a closer look at the provisions on the establishment of jurisdiction in those states which domestically criminalize the crime of aggression.
Since an act of aggression necessarily involves cross-border activities, a potential prosecution on charges of aggression may be based on various principles of jurisdiction. Every state, which is the victim of an act of aggression, may establish jurisdiction on the principle of territoriality. |127| At the same time, where available, the principle of passive nationality may apply if an act of aggression caused individual victims. In addition, a number of states provide for jurisdiction upon the protective principle, where that state's interests are violated. |128| An aggressor state may as well invoke jurisdiction upon the principle of territoriality where preparatory acts will have taken place on its territory. |129| It may usually also assume jurisdiction according to the basis of active personality. |130| Furthermore, such jurisdictional links may eventually also be established by a third state.
Only few states go beyond these traditional principles of jurisdiction and do not require a specific link to the offence. These criminal codes do not only criminalize the crime of aggression as a crime under international law, but also provide for the possibility of enforcing it universally. Bulgaria, Croatia and Moldova, for instance, establish a universal jurisdiction for the crime of aggression. |131| Bulgaria justifies its jurisdiction 'regarding foreigners who have committed abroad a crime against the peace and mankind' in that this affects the interests of another country or foreign citizens. |132| The Moldovan criminal code equally provides universal jurisdiction for 'crimes against the peace and security of mankind and war crimes': 'Foreign citizens and persons without citizenship that do not have permanent domicile on the territory of the Republic of Moldova, who committed crimes outside the territory of the Republic of Moldova, are liable to criminal responsibility under the present Code and are subject to criminal responsibility on the territory of the Republic of Moldova', as long as they were not held criminally liable or convicted by a foreign state. |133| The Croatian criminal code establishes universal jurisdiction for all 'criminal offences against values protected by international law', including the crime of aggression, 'if the perpetrator is found within the territory of the Republic of Croatia and is not extradited to another state'. |134| Hungary also allows for universal jurisdiction for crimes against the peace, which are defined as incitement to a war of aggression. |135|
In addition, a number of criminal codes contain blanket universal jurisdiction clauses. They allow prosecution of non-nationals for crimes committed abroad against foreigners, if such crimes are proscribed by a recognized norm of international law or an international treaty binding upon that state. |136| Depending on the specific formulation and interpretation of such a clause, it may apply to the crime of aggression as a crime under customary law, or as a crime defined by treaty law, if the state in question is a party to the London Agreement or the Rome Statute. |137| In the latter case, the prerequisite prescription might already be met, since the Statute confirms the existence of individual criminal responsibility for the crime of aggression and lists it as one of the 'most serious crimes of concern to the international community as a whole' falling within the jurisdiction of the ICC. From a more cautious approach, complete international proscription may only be assumed, once a provision on aggression is adopted and binding upon a State Party. Some states, however, do not only require the international prescription of the crime in this context, but only accept the establishment of universal jurisdiction if explicitly foreseen by an international treaty obligation. |138|
National provisions on the crime of aggression have hardly been enforced by national prosecuting authorities. Apart from a number of national trials conducted in the aftermath of the Second World War, e.g., on the basis of Control Council Law No. 10, next to no prosecutions have been reported. |139| The crime of aggression, on the other hand, has played a significant role in some cases relating to civil obedience in relation to the Vietnam war, Iraq and Afghanistan. |140|
3. Norms Criminalizing Conduct, which Includes Elements of the Crime of Aggression
References to war or acts of aggression in domestic criminal legislation are not limited to norms that aim to implement the crime of aggression under international law. The same notions are also used to describe elements of definitions of other crimes. These crimes, contrary to the group of crimes dealt with under 2, were categorized by the national legislature as protecting primarily national legal values, in particular, the independence, |141| sovereignty, |142| security, |143| international personality, |144| existence |145| and authority of the state or the sovereign. |146| Where they protect peace, they are primarily concerned with the nation's peace rather than with international peace as such. |147|
Nonetheless, these national offences might play a role with regard to the ICC's potential exercise of complementary jurisdiction over the crime of aggression. Depending on the stage of a national proceeding, the Court determines the inadmissibility of a case before it if 'the case' is being investigated or prosecuted, has been investigated without the initiation of a prosecution or 'the person concerned has already been tried for conduct which is the subject of the complaint'. |148| The decisive criteria seem to be national allegations against the same individual for 'conduct also proscribed' in the definition of the crime in the Rome Statute. |149| Consequently, national offences based on the same criminal conduct as the crime of aggression constitute an obstacle for the admissibility of an aggression case before the ICC, if none of the exceptions of Articles 17 and 20(3) applies.
The following section will examine national norms containing elements, which are also components of the crime of aggression under international law, and will analyse in what way, if any, the relevant national crime might be an alternative to prosecution of the crime of aggression before the ICC.
Beforehand, it should be mentioned that none of the following criminal provisions limits individual criminal responsibility to persons 'being in a position effectively to exercise control over or to direct the political or military action of a state'. However, none of the definitions of crimes per se excludes the prosecution of such persons. Given the lack of an express qualification of the perpetrator of the crime of aggression in those national provisions which implement it into domestic law, |150| such missing component of the definition does not create an obstacle to the potential suitability of one of the following norms.
A. Preparation of a War of Aggression
Germany and Paraguay criminalize, as a domestic crime, conduct which seems to originate directly from international law sources: the preparation of a war of aggression. |151| The relevant provision of the German criminal code requires two conditions, which strictly link its scope of application to Germany. It is expressly limited to the preparation of a war of aggression with German participation and it demands the creation of a danger of war for Germany. A war of aggression which does not involve Germany does not fall within the definition of the crime. Section 80 provides: '[w]hoever prepares a war of aggression (Art. 26 subsection (1), of the Basic Law) in which the Federal Republic of Germany is supposed to participate and thereby creates a danger of war for the Federal Republic of Germany, shall be punished with imprisonment for life or for not less than ten years.' |152| In light of this restrictive definition, section 80 is understood as primarily protecting the external security of Germany. |153| Therefore, the crime has been embedded within the section of 'crimes against peace, high treason and endangering the democratic rule of law'. |154| According to the prevailing opinion, the requested type of participation includes the preparation of a war of aggression in which Germany would be the aggressor, as well as a war of aggression against Germany. |155| However, based on a teleological argumentation, a further limitation of the application of this norm to wars in which Germany participates as an aggressor has also been voiced. |156| Paragraph 5(1) German criminal code extends the application of this norm to criminal acts of non-nationals committed abroad. |157|
Article 271 of the Paraguayan criminal code is clear with regard to its scope of application. It applies exclusively to the preparation of wars of aggression in which the Republic of Paraguay would be the aggressor: 'El que preparara una guerra de agresión en la cual la República sea la agresora, será castigado con pena privativa de libertad de hasta diez años'. |158| Criminal acts perpetrated on Paraguayan territory, as well as abroad, are equally covered by the provision and may be prosecuted before domestic courts. |159| The provision is categorized as a criminal act against the state, in particular, against the existence of the state. |160|
The aforementioned provisions cover only part of the actus reus of the crime of aggression. They criminalize preparatory acts, irrespective of whether an act of aggression occurs or not. However, the initiation and the actual waging of a war of aggression are not covered by the definition of the crime. The provisions are further limited by demanding participation of the proscribing state in the act of aggression, either as the aggressor or as the attacked state. Given the required link to the proscribing state and the limited criminalization of individual conduct, these provisions can only play an auxiliary role within the Rome Statute's complementary system. The ICC will only be competent to adjudicate in the case of individuals for the crime of aggression when an act of aggression has been executed. In that case, however, it is assumed that the Court would also have jurisdiction over related preparatory acts. National prosecutions based on the crime of preparation of aggression cannot cover the very core of the crime of aggression - the actual waging of an act of aggression. Therefore, it would be preferable to have a complete investigation of all modes of participation before the ICC. However, even if national proceedings take place, the Court would not be hampered to proceed with its own case based on charges of initiating and waging an act of aggression. |161| National provisions on preparatory acts might be an asset, if an alleged perpetrator, for practical or policy reasons, is not charged before the ICC. In such a case it might be preferable to at least hold a person accountable for preparatory acts if there is no other possibility of prosecuting for the crime of aggression in its entirety. In any case, the strict preconditions of the definition of the crime and for the establishment of jurisdiction must be fulfilled.
The Japanese criminal code contains a comparable norm, directed at protecting Japanese foreign relations. |162| Article 93 of the Japanese criminal code provides punishment for 'a person who prepares or plots to wage war privately upon a foreign state'. This definition contains an additional element, by requiring the waging of war to be conducted 'privately'. However, an armed attack against a foreign state conducted privately, without the authorization or acknowledgment of a state, in principle, does not qualify as an act of aggression by that state. Such acts, therefore, are unlikely to reach the threshold of the definition of the crime of aggression for the ICC. One rather hypothetical scenario in which this provision might overlap with individual criminal responsibility for the crime of aggression might be that the private acts can be imputed upon a state: for instance, a state organ in a decision-making position that 'privately' prepares an act of aggression and eventually orders elements of the armed forces to attack a foreign state.
B. Incitement to a War of Aggression and Propaganda of War
While a number of states classify acts, such as instigation (public) incitement to war, or war propaganda as a crime under international law, |163| others criminalize comparable conduct as a domestic crime, usually within the categories of crimes against national security or treasonable offences. |164|
Section 80a of the German criminal code defines the crime of 'incitement to a war of aggression' by 'public incitement ... in a meeting or through the dissemination of writings ... in the territorial area of application of this law'. The term 'war of aggression' has to be interpreted in accordance with section 80 of the German criminal code, ultimately, in accordance with international law. |165| As in the case of preparation of a war of aggression, the definition of the crime requires a link to Germany. Incitement only falls within the definition of section 80a when committed on German territory. |166|
Romanian citizen and residents who get in contact with a foreign power 'in order to suppress or undermine the state unity, indivisibility, sovereignty or independence, by actions instigating a war against the country or facilitating foreign military occupation' are responsible according to Article 271 of the Romanian criminal code. The same criminal conduct can be performed by foreign citizens and non-residents as a 'hostile act against the Romanian state'. |167| With prior authorization by the general prosecutor, Romanian courts may establish jurisdiction for relevant acts committed outside Romanian territory. |168| In addition, the category of crimes against national security contains the offence of 'dissemination of false information in order to cause a war'. |169|
Finland criminalizes various acts when committed 'during an ongoing or imminent military crisis or international political crisis, for the purpose of causing Finland to be at war or the target of a military operation' under the heading of 'warmongering'. |170| Two of these acts relate to incitement to and propaganda of war. Paragraph 1 criminalizes a person who 'publicly exhorts a foreign state to carry out an offensive against Finland or Finland to carry out an offensive against a foreign state'. Paragraph 2 concerns the public dissemination of statements or other propaganda 'intended to turn the public opinion in favour of the carrying out of offensives'. The proscribed conduct only falls within the definition of the crime when committed on Finnish territory or by a Finnish citizen outside of Finland. Criminal responsibility is further limited to situations of an ongoing or imminent military or political crisis. Lastly, all acts must be committed for the purpose of causing war. However, if these preconditions are met, the crime covers instigation of and propaganda for military operations undertaken by Finland against another state, as well as against Finland.
The Australian criminal code, for instance, defines as an act of treason the instigation by 'a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth'. |171| The comparable Nigerian provision criminalizes 'any person who instigates any foreigner to invade Nigeria with an armed force'. |172| The Nicaraguan criminal code provides punishment for individuals who: '[i]nciten a una potencia extranjera a hacer la guerra a Nicaragua o se concierten con ella para tal objeto'. |173|
Individual conduct as defined in the examined national provisions of incitement to war or propaganda of war is not significantly different as regards norms which intend to implement a crime under international law and those which primarily aim to protect national legal values. Nevertheless, the scope of application of the latter is limited. The vast majority of states restrict the definition of crime in order to exclusively protect their own security. The German and Finnish provisions, which apply also to incitement of acts of aggression against a foreign state, are exceptional. As regards incitement as a treasonable offence, the aspect of international aggression is strongly overlapped by criminalizing a citizen's behaviour against its own government. |174| The reach over persons not aligned with the proscribing state is rather exceptional. In such cases, the definitions of crime tend to be restricted to acts conducted on national territory.
The definition of the crime of aggression under the Rome Statute most probably will not comprise instigation and propaganda of war as specific criminal acts. National prosecutions simply on these charges, therefore, will unlikely bar a prosecution for the crime of aggression before the ICC. Even if some aspects of instigation and propaganda of war were understood as preparatory acts, conduct potentially constituting a common basis for prosecution on the national as well as on the international level would be very restricted. |175|
C. Waging a War, Conspiracy and Other Treasonable Offences
The Indian criminal code contains provisions to protect itself as well as its allies from outside attacks. Its Article 121 criminalizes the waging of war against the Government of India as an offence against the state. Criminal responsibility is also provided for attempting, abetting and conspiring to wage such war. |176| In a comparable way, punishment is prescribed for 'whoever wages war against the Government of any Asiatic Power in alliance or at peace with the Government of India or attempts to wage such war, or abets the waging of such war'. |177|
'Levying war' against the prescribing state, |178| 'the Queen and Head of State'/'Her Majesty', |179| or 'the Commonwealth' |180| is defined as a treasonable offence (high treason) in all examined states of the Anglo-Saxon legal tradition. In many cases conspiracy to levy war, |181| preparatory acts |182| or forms of aiding and abetting |183| are expressly listed as criminal acts. Criminal responsibility for such conduct dates back to the earliest English treason legislation of 1351. |184| It may be established as early as the formation of a respective purpose or design of the mind manifested by an overt act. |185| The definitions of crimes generally cover conduct 'within' as well as 'without' the prescribing state. |186| The statutory definition may confine individual criminal responsibility to persons owing allegiance to the prescribing state (or head of state), sometimes including a protective power, in any event |187| or only in cases where the crime was committed abroad. |188|
Treason is a common offence in national criminal laws, though with deviating definitions and scope of application. Many states use this category of crime or criminalize similar conduct to protect the existence of the state not only from internal uprising, but also from outside dangers. Offences to this end include conspiracy, agreement or negotiation with a foreign power aiming at declaring war or undertaking armed intervention against the prescribing state |189| or the seceding or transfer of territory. |190| Criminal responsibility is often restricted per definition to acts committed on the territory of the prescribing state |191| or to its nationals. |192| However, criminal responsibility for the actual waging of a war is rarely found outside the common law tradition. A Cuban provision safeguarding the state's external security comes close, but protects more generally against acts committed in the interest of a foreign power and which violate its independence and territorial integrity. |193| Similarly, the Iraqi criminal code provides punishment for '[a]ny person who, in a foreign country or in association with it or with a person who is working on its behalf, attempts to commit hostile acts against Iraq that may lead to the outbreak of war or the severing of diplomatic relations or who provides it with the means to that end'. |194|
National treason laws and other crimes protecting the state may provide a wide variety of conduct which is also reflected in the definition of the crime of aggression under international law: the waging of war, conspiracy and preparation to commit this crime, as well as aiding and abetting in its execution. In some cases, all modes of perpetration contained in the Nuremberg Charter are reflected in national laws. However, given the legal values protected by these norms, they are mainly concerned with attacks against the prescribing state (in some cases this protection is extended to allies |195|). In addition, treason is a crime which builds upon the specific relationship between a citizen (or person otherwise owing allegiance to) and its state. |196| These definitional restrictions almost nullify the possibility of treason provisions countering cases of aggression. For a limited scope of application, one may think of, e.g., a high-level official of state A playing a significant role in state B's act of aggression against state A. Furthermore, it is questionable whether treason laws, which have been dormant in many states, should be reactivated. The definition of these crimes is often rather wide and open to abuse. |197| The very aim of some treason provisions, in particular where they expand responsibility to early stages of criminal conduct, has to be judged critically in modern democratic states. |198|
Several states criminalize acts which may provoke an armed intervention or expose the nation to war. Such crimes, often referred to as 'hostile acts', do not primarily aim to safeguard the sovereignty, territorial integrity and political independence of the attacked state, but rather relate to protecting the perpetrator's own state from the danger of war. |199| These crimes are generally categorized as offences against the external security, |200| the peace, |201| or the independence and integrity of the state, |202| or as treasonable offences. |203|
The structure of crimes involving 'hostile acts' is comparable. Certain acts are committed, usually by a national or from the territory of the prescribing state, against another state and may or do provoke a reaction by the targeted state which amounts to the use of armed force. However, specific elements of the definitions of crimes describing 'hostile acts' vary. They may require conduct with a specific intent to bring about a danger of war (infra at 1). In other states, the mere act that may cause such danger suffices (infra at 2). A third group of crimes specifies that the acts in question are to be conducted against the will of the government (infra at 3).
1. Acts Committed With the Intent to Provoke War
Article 211 of the Albanian criminal code defines 'provocation of war' as '[c]ommitting acts which intend to provoke war or make the Republic of Albania face the danger of a (military) intervention from foreign powers'. A comparable provision can be found in the Cuban criminal code, and which relates to the encouragement of armed aggression against Cuba. |204| Both provisions are applicable to acts committed on each country's respective territory, as well as to acts committed abroad by nationals or foreigners. |205|
El Salvador confines the definition of provoking war, reprisals or international hostilities to acts committed on Salvadorian territory. |206| It has been noted in this context that hostile acts against a foreign state, as required in Article 354 of the Salvadorian criminal code, can be understood as acts against the sovereignty, territorial integrity and political independence of a state according to Resolution 3314. |207| While acts which expose the state to the danger of a war are sanctioned with five to ten years imprisonment, the penalty rises to 10 to 20 years in the case of an actual outbreak of a war. |208| Honduras, on the other hand, restricts criminal responsibility to its own nationals, certain residents and former nationals. Any acts have to be committed with the purpose of provoking aggression or hostilities against Honduras. |209|
The Finnish criminal code requires that 'a person in Finland or a Finnish citizen outside of Finland, during an ongoing or imminent military crisis or international political crisis, for the purpose of causing Finland to be at war or the target of a military operation ... unlawfully commits a violent act against a foreign state or the representative, territory or property of a foreign state so that the act evidently increases the danger of Finland being at war or the target of a military operation, that person shall be sentenced for warmongering to imprisonment for at least one and at most ten years' to fulfil the definition of warmongering as a treasonable offences. |210| This definition contains several distinct elements. In particular, the violent acts have to be committed unlawfully, specifically targeted and need to evidently increase the danger of war for Finland.
2. Acts That Cause or May Lead to the Outbreak of War
Some national criminal codes contain similar offences as discussed under D1, which differ insofar as they do not require the hostile act to be particularly directed or intended to provoke a war. The definitions of these crimes are fulfilled when the act is able to cause war or actually leads to the outbreak of war.
The Swedish criminal code provides for punishment of '[a] person who by violent means or foreign aid causes a danger of the Realm being involved in war or other hostilities' for high treason or for instigating war. |211| Similarly, Norway criminalizes '[a]ny person who unlawfully causes or is accessory to causing an outbreak of war or hostilities'. |212| This norm expressly requires the acts causing the outbreak of a war to be unlawful. Furthermore, it does not only protect Norway from becoming the target of hostilities, but also 'any state allied with Norway in time of war'. |213|
3. Acts Not Authorized by the Government
The majority of national codes, which invoke individual criminal responsibility for 'hostile acts', rely upon an additional element of the definition of crime. To apply these norms, two conditions usually need to be established. First, the acts against a foreign nation must be qualified as being 'not approved' or 'against the will' of the government. |214| Secondly, they must create or increase the danger of counter-acts by that foreign state, which may take different appearances and intensities: |215| they may concern the aggravation or rupture of diplomatic relations, |216| a risk or danger of a declaration of war, |217| a risk or danger of war, |218| a declaration of war, |219| reprisals, |220| or they may actually provoke a war or the outbreak of hostilities. |221| If the definition of crime relates primarily to the causing of a certain danger, punishment generally increases if the hostile acts result in the materialization of that danger. |222| Accordingly, in cases where the definition of crime demands a result, lower penalties may be provided if the intended result does not occur. |223| Different penalties may be foreseen for public officers or employees and private individuals. |224|
The Greek provision does not only protect Greece from exposure to the risk of war or hostilities, but also any of its allies. |225| Uruguay specifies the acts which are able to expose the Republic to the danger of war as 'levantare tropas contra un gobierno extranjero, o ejercitare otros actos susceptibles, por su naturaleza, de exponer a la República al peligro de una guerra'. |226| Similarly, the Italian provision mentions 'fa arruolamenti o compie altri atti ostili'. |227|
In some cases the definitions of crime limit accountability to citizens |228| or to acts committed on the prescribing state's territory. |229| The majority of definitions are formulated in a neutral way as regards the nationality of the perpetrator or the territory of the offence. They may be subject to general jurisdictional limitations. |230| However, several states provide for various forms of extraterritorial jurisdiction when it comes to offences against the security of the state. |231|
Hostile acts as described under (D) cover a wide variety of criminal acts. They may include the expression of intimidating views against a foreign state in periodicals or other publications, |232| the recruitment of armed forces, |233| as well as acts of war. |234| Despite the fact that this type of crime primarily protects national legal interests, a hostile act, which attains a level of seriousness, constitutes a violation of the sovereignty of the state against which these acts were directed. If such an act was attributable to a state, it would depend on its intensity and scale whether the act could be regarded as a violation of the prohibition of intervention, the use of force, or an act of aggression at the international level. In case the intensity and scale of the act are those of an act of aggression, the conduct falling under the definition of hostile acts on the national level could at the same time constitute the basis for the crime of aggression under international law.
A specific problem arises where the definition of crime requires that the hostile acts in question were not authorized by the government or state. |235| Since the existence of an act of aggression by a state is a precondition for individual criminal responsibility for the crime of aggression, the question arises whether or not an unauthorized act could be attributable to a state. As elaborated above, |236| such a scenario is most unlikely to achieve practical importance.
It is noteworthy that a considerable number of states have implemented the crime of aggression under international law into domestic criminal law. These norms are directly interrelated with international law as the source of criminalization. By enabling national courts to enforce this crime, states contributed to the protection of the legal values of the international community as a whole. The relevant provisions usually date from a time before the negotiation of the Rome Statute and were not introduced in the process of implementing the Rome Statute.
National norms relating to aggression reflect two main sources of international law. On the one hand, the customary crime of aggression, which originates from Article 6(a) of the Nuremberg Charter, and, on the other hand, the prohibition of any propaganda for war according to the International Covenant on Civil and Political Rights. In some cases it is notable that states seem to understand these provisions as components of one crime under international law.
With regard to the customary crime of aggression, national definitions of the crime draw largely upon the definition of crimes against peace in the Nuremberg Charter. However, it is clearly understood that this blanket, and rather rudimentary, definition has to be interpreted in the light of subsequent developments. National definitions are therefore apt to take into account customary developments with regard to the crime of aggression under international law, as long as they do not contradict the implemented legislation.
In the light of the Nuremberg Charter, most national definitions do not limit the circle of perpetrators of the crime of aggression. However, should the leadership element be understood as an integral element of the definition of the crime under customary international law, national norms may be interpreted and warrant an interpretation reflecting this element. The final outcome of the work of the Special Working Group on the Crime of Aggression will certainly be a strong indication as regards the customary status of the leadership element.
With regard to individual conduct, most states rely on the Nuremberg precedent. However, some states chose a selective approach or went beyond, introducing additional modes of liability. Despite the incorporation of specific modes of perpetration in the definition of the crime, no national criminal code expressly excludes the application of its general part. Potential conflicts of norms, therefore, need to be solved by way of interpretation.
The definition of the act of aggression by a state, conditio sine qua non for individual criminal responsibility for the crime of aggression, remains rudimentary in national provisions. Most states implement parts of the wording of the Nuremberg Charter and criminalize a 'war of aggression'. However, national commentaries underline that this notion has to be interpreted in the light of customary law developments, in particular, with regard to GA Resolution 3314. In some cases the use of this term has been criticized for its lack of legal certainty in the light of the principle of legality. Only one national legislation contains a specific definition of the prerequisite act of aggression by a state. The Croatian criminal code relies on a combination of a generic definition and the reference to specific criminal acts, in accordance with Articles 1 and 3 of GA Definition of Aggression.
In short, national provisions on the crime of aggression are largely orientated alongside a well-established definition under customary international law and are formulated flexibly enough to incorporate subsequent customary law developments. They will presumably be in compliance with the final proposal elaborated by the Special Working Group on the Crime of Aggression, which will serve as a basis for a provision on aggression enabling the ICC to exercise its jurisdiction over this crime, or may be interpreted accordingly.
In light of the ongoing negotiations to define the crime of aggression on the international level, some aspects of national definitions merit particular attention. First of all, one may observe that domestic provisions on the crime of aggression do not reflect the leadership element in the definition of crime. Secondly, national laws do not appear to have any difficulty in applying the general part of the national criminal code to a definition of crime which itself contains specific modes of perpetration. Last but not least, the definition of the crime of aggression in Article 157 of the Croatian criminal code provides an interesting example of innovative codification.
Despite the international character of the crime of aggression, only a few states provide for its enforcement on the basis of universal jurisdiction. The vast majority of states base their jurisdiction on the establishment of one of the traditional jurisdictional links between the criminal act and a state's territory, its nationals or interests.
In addition to national provisions implementing the crime of aggression under customary law, other national norms also refer to acts of aggression. These provisions - usually crimes against the existence, sovereignty, territorial integrity, independence, security of the state or treasonable offences - aim primarily at protecting national legal values. Nevertheless, some definitions of crimes only differ from certain forms of implementing laws because they are not formally identified as protecting international legal values.
Some of these offences cover only parts of the material elements of the crime of aggression. Others define a lower threshold as to the scale and gravity of the unlawful act, which however would not exclude their relevance in more severe cases. Often, they can be distinguished in that the definitions of these crimes are specifically linked to nationals or to the territory of the respective state. They may only cover situations in which the prescribing state is involved in aggressive acts, or they may aim to protect the state from outside aggression. In some instances, protection is expanded to third states. The relevance of these national offences in cases involving the crime of aggression is limited. However, when the strict definitional confinements are met, national bona fide prosecutions may limit or bar a case before the ICC - if the general complementarity framework will apply to the crime of aggression. In addition, national provisions covering specific aspects of the crime of aggression might also play a role in order to ensure the prosecution of persons who might not be prosecuted by the ICC, e.g., lower-level perpetrators or accessories.
However, if states desire to enforce the crime of aggression under international law on the national level, it is advisable to fully implement this crime into national legislation. Only then, they will ensure that the complete range of criminal acts can be prosecuted before national courts and that all aspects of this crime are adequately taken into account by national judges. Such implementation would serve various aims. States would foster their ability to exercise primary responsibility under the Rome Statute's complementarity regime. They would contribute to the endeavours of the international community to ensure that the most serious crimes do not go unpunished. Furthermore, national provisions on aggression may serve as a deterrent for states against outside aggression.
* * * Astrid Reisinger Coracini is the Executive Director of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. This paper has been published with the author's permission.
Notes:
*. The author wishes to thank The Planethood Foundation for having encouraged and supported research on national laws on aggression upon which this chapter is based. [Back]
1. Report of the International Law Commission on the work of its forty-seventh session, 2 May to 21 July 1995 (A/50/10), hereinafter '1995 ILC Report', at 39. [Back]
2. Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its forty-seventh session, 6 May to 26 July 1996 (A/51/10), 9, hereinafter '1996 ILC Draft Code', at 49 to 50. [Back]
3. 1996 ILC Draft Code, at 42. [Back]
4. Art. 16 1996 ILC Draft Code defined the crime of aggression as follows: 'An 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.' [Back]
5. 1996 ILC Draft Code, at 49. [Back]
6. Art. 12(2)(a)(ii) 1996 ILC Draft Code. [Back]
7. Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court, Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 21-23 June 2004, ICC-ASP/3/ SWGCA/PNR1 (hereinafter '2004 Princeton Report'), para. 27. [Back]
9. For details see O. Triffterer, 'Concluding Remarks', in Austrian Federal Ministry for Foreign Affairs/ Salzburg Law School on International Criminal Law (eds), The Future of the International Criminal Court - Salzburg Retreat, 25-27 May 2006 (2006). Available at http://www.sbg.ac.at/salzburglawschool/Retreat (visited 30 September 2009), 26, at 32; id., 'Preliminary Remarks: The Permanent International Criminal Court - Ideal and Reality', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article (2nd edn, Oxford: Hart Publishing, 2008), margin No. 60. [Back]
11. Art. 20(3) ICCSt. For details see I. Tallgren and A. Reisinger Coracini, 'Article 20 - Ne bis in idem', in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article (2nd edition, Oxford: Hart Publishing, 2008), margin No. 41. [Back]
12. 2004 Princeton Report, para. 34. [Back]
13. W. A. Schabas, 'Origins of the Criminalization of Aggression: How Crimes Against Peace Became the "Supreme International Crime"', in M. Politi and G. Nesi (eds), The International Criminal Court and the Crime of Aggression (2004), 17, at 18, assesses that 'the complementarity regime ... seems virtually inapplicable'. [Back]
14. See in this regard e.g. N. Strapatsas, 'Complementarity & Aggression: A Ticking Time Bomb?', Draft presented to the Marie Curie Research Course on International Criminal Law 2007, at 24 ff.; P. Wrange, 'The Principle of Complementarity under the Rome Statute and its Interplay with the Crime of Aggression', supra in this Volume. [Back]
15. The International Court of Justice held that immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in a foreign state only (1) when 'such persons enjoy no criminal immunity under international law in their own countries'; (2) 'if the State which they represent or have represented decides to waive that immunity'; and (3) 'after a person ceases to hold the office ... in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity'. See International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement of 14 February 2002, para. 61. Critically thereto, see e.g. Dissenting Opinion of Judge van den Wyngaert, paras 11 ff.; A. Cassese, 'When May Senior Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case', 13 European Journal of International Law (2002), at 853. [Back]
16. For this scenario see e.g. 2004 Princeton Report, para. 25. [Back]
17. Art. 17(2)(a) ICCSt. [Back]
18. Art. 17(2)(c) ICCSt; see also 2004 Princeton Report, para. 25. [Back]
19. See e.g. Preambular para. 5 ICCSt. For details on the principle of complementarity as applicable to the crime of aggression, see Wrange, supra note 14. [Back]
20. According to Art. 5(1) ICCSt, the ICC has jurisdiction over the 'most serious crimes of concern to the international community as a whole', including the crime of aggression. However, the Court can only exercise this jurisdiction, once a provision 'defining the crime [of aggression] and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime' will be adopted (Art. 5(2) ICCSt). [Back]
21. See thereto e.g. House of Lords in R. v. Jones et al., Session 2005-2006, [2006] UKHL 16; see also T. Gut and M. Wolpert, 'Canada', in A. Eser, U. Sieber and H. Kreicher (eds), National Prosecution of International Crimes (Berlin: Duncker & Humblot, 2005), at 33; generally, W.N. Ferdinandusse, Direct Application of International Criminal Law in National Courts (The Hague: TMC Asser Press, 2006). [Back]
22. These include sources from Albania, Argentina, Armenia, Australia, Austria, Azerbaidjan, Belarus, Belgium, Bolivia, Bosnia and Herzegovina (Federation, Brcko District and Republika Srpska), Brazil, Bulgaria, Canada, Chile, China, Colombia, Costa Rica, Cote d'Ivoire, Croatia, Cuba, Ecuador, El Salvador, England and Wales, Estonia, Fidji, Finland, France, Georgia, Germany, Greece, Guatemala, Guyana, Haiti, Honduras, Hong Kong, Hungary, India, Iran, Ireland, Iraq, Israel, Italy, Japan, Kazakhstan, Kiribati, Kosovo, Latvia, Liechtenstein, Luxemburg, Macedonia, Malta, Mexico, Moldova, Mongolia, Montenegro, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Russian Federation, Schweiz, Scotland, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Tajikistan, Turkey, Ukraine, United States of America, Uruguay, Uzbekistan, Vanuatu, Venezuela, Yugoslavia and Zambia. References to Titles, Chapters or Sections of national criminal codes, if not otherwise indicated, relate to the respective code's Special Part. [Back]
23. E.g. Organization of American States. Available at http://www.oas.org/juridico/mla/en/index.html (visited 30 September 2009); OSCE Office for Democratic Institutions and Human Rights. Available at http://www.legislationline.org (visited 30 September 2009); University of Fribourg. Available at http://www.unifr.ch/ddp1/derechopenal/ley.htm (visited 30 September 2009); Academy of European Law. Available at http://www.era.int/domains/corpus-juris/public/texts/legal_text.htm (visited 30 September 2009); Eurojustice network. Available at http://www.eurojustice.org/member_states (visited 30 September 2009). For a compendium of over 60 national implementing laws see the International Criminal Court Legislation Database of the University of Nottingham's Human Rights Law Centre. Available at http://www.nottingham.ac.uk/law/hrlc/international-criminal-justice-unit/implementation-database.php (visited 30 September 2009); see also International Humanitarian Law/International Criminal Law database. Available at http://www.wihl.nl (visited 30 September 2009). [Back]
24. A. Eser, U. Sieber and H. Kreicker (eds), Nationale Strafverfolgung völkerrechtlicher Verbrechen/ National Prosecution of International Crimes, Vol. 1: H. Gropengießer/H. Kreicker, 'Deutschland' (2003); Vol. 2: D. Frände, 'Finnland', E. Weigend, 'Polen', K. Cornils, 'Schweden' (2003); Vol. 3: P. Novoselec, 'Kroatien', I. Zerbes, 'Österreich', M. Skulic 'Serbien und Montenegro', D. Korosec, 'Slowenien' (2004); Vol. 4: A. B. Kouassi/S. Paulenz, 'Cote d'Ivoire', A. Gil Gil, 'España', J. Lelieur-Fischer, 'Frankreich', K. Jarvers/Ch. Grammer 'Italien', K. Ambos/E. Malarino, 'Lateinamerika' (2005); Vol. 5: T. Gut/M. Wolper, 'Canada', A. Parmas/T. Ploom, 'Estonia', M. G. Retalis, 'Greece', M. Kremnitzer/M. A. Cohen, 'Israel', E. Silverman, 'United States of America' (2005); Vol. 6: A. Biehler/Ch. Kerll, 'Australien', T. Richter, 'China', Ch. Rabenstein/R. Bahrenberg, 'England und Wales', S. Lammich, 'Russland und Weißrussland', S. Tellenbach, 'Türkei' (2005) (Berlin: Duncker & Humblot). [Back]
25. For the current state of negotiations see Report of the Informal Inter-Sessional Meeting of the Special Working Group on the Crime of Aggression of the Assembly of States Parties of the International Criminal Court, Liechtenstein Institute for Self Determination, Woodrow Wilson School, at Princeton University, 1114 June 2007, ICC-ASP/6/SWGCA/INF. 1, hereinafter '2007 Princeton Report'. [Back]
26. Preambular para. 3 ICCSt. On this changed formula of international legal interests see O. Triffterer, Preamble, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers' Notes, Article by Article (2nd edn, Oxford: Hart Publishing, 2008), margin No. 11. [Back]
27. See Art. 1 Definition of Aggression, UN GA Res. 3314 (XXIX), 1974. The question of subsidiary protection of individual interests is beyond the scope of this chapter. For details see A. Reisinger Coracini, 'Verbrechen gegen den Frieden' (21 Leiden Journal of International Law 2009, 699), at II. [Back]
28. See in this context, for instance, Title One of the Philippine criminal code, which merges 'crimes against national security and the law of nations'. [Back]
29. Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina (criminal codes of the Federation, Brcko District and Republika Srpska), Bulgaria, Croatia, Estonia, Georgia, Hungary, Kazakhstan, Kosovo, Latvia, Macedonia, Moldova, Mongolia, Montenegro, Poland, Russian Federation, Serbia, Slovakia, Slovenia, Tajikistan, Ukraine, Uzbekistan. The relevant norms either implement the crime of aggression under international customary law, the treaty-based prohibition of propaganda of war, or both. Also the Portuguese criminal code, Chapter I of Title III, contained a crime of incitement to war (Art. 236) entitled 'dos crimes contra a paz'; the provision has, however, been renounced in 2004. [Back]
30. See Art. 384 Armenian criminal code; Art. 157 Croatian criminal code; Art. 442 Montenegrin criminal code; Art. 386 Serbian criminal code; Art. 395 Tajik criminal code. [Back]
31. Para. 91 Estonian criminal code; Art. 151 Uzbek criminal code. [Back]
32. Section 72 Latvian criminal code. [Back]
33. Art. 165 Bosnian federal criminal code; Art. 159 Bosnian criminal code (Brcko District); Art. 444 Bosnian criminal code (Republika Srpska); Art. 385 Slovenian criminal code. [Back]
34. Art. 114 Cuban criminal code; Section 153 Hungarian criminal code; former Art. 236 Portuguese criminal code. [Back]
35. Art. 297 Mongolian criminal code. [Back]
36. Art. 353 Russian criminal code. Similarly, e.g., Art. 139 Moldovan criminal code; Art. 156 Kazakh criminal code; Art. 117 (1) Polish criminal code; Art. 437 Ukrainian criminal code. [Back]
37. See, for instance, Chapter 35 Montenegrin criminal code; Chapter 34 Serbian criminal code; Chapter XXXV Slovenian criminal code; Chapter XX Ukrainian criminal code; Chapter XIV Kosovar criminal code; Title I, Chapter III Venezuelan criminal code. [Back]
38. Section 13, Chapter 33 Armenian criminal code; Chapter 4 Kazakh criminal code; Title 10, Chapter 30 Mongolian criminal code; Section XV Chapter 34 Tajik criminal code; Section 2, Chapter 8 Uzbek criminal code; Chapter 34 Russian criminal code. [Back]
39. Chapter XVI Bosnian federal criminal code; Chapter XIV Bulgarian criminal code; Chapter 8 Estonian criminal code. [Back]
40. Section 14 Georgian criminal code; Chapter XI Hungarian criminal code. [Back]
41. See, e.g., Chapter IX Latvian criminal code; Chapter I Moldovan criminal code; Chapter XVI Polish criminal code. [Back]
42. For the discussion in Canada in the context of the preparation of the ICC implementation act see Gut and Wolpert, supra note 24, at 34. [Back]
43. Cornils, supra note 24, at 220. [Back]
44. Frände, supra note 24, at 45. [Back]
45. This discussion arose following the circulation of a proposal for alternative language for the definition of the crime of aggression by the Chairman of the Special Working Group for the Crime of Aggression (SWGCA) at the fifth resumed session of the Assembly of States Parties. It suggested that '[t]he Court shall have jurisdiction with respect to the crime of aggression when committed by a person being in a position effectively to exercise control over or to direct the political or military action of a state' (Report of the Special Working Group on the Crime of Aggression, ICC-ASP/5/SWGCA/3 of 31 January 2997, Annex, at 7). Meanwhile, the question seems to have been settled with a vast majority of delegates expressing their understanding of the leadership element as an integral part of the definition of crime (2007 Princeton Report, para. 9). During the discussions some delegations voiced the opinion that they would not see a substantive change regarding the result of the two different formulations. This may be true regarding prosecutions before the ICC. However the question of whether the leadership element forms part of the customary definition of the crime may have an impact on domestic enforcement. [Back]
46. This consensus can also be illustrated by the drafting history for a provision on aggression. All but one proposal on the definition of the crime expressly refer to the leadership element and even PCNICC/1999/ DP. 12 (Russian Federation), introducing Art. 6 (a) IMT Charter, is to be understood as implicitly incorporating this element. See also e.g. C. Kress, 'The Crime of Aggression before the First Review of the ICC Statute', 20 Leiden Journal of International Law (2007), 851, at 855. [Back]
47. See Discussion paper proposed by the Coordinator, Report of the Preparatory Commission for the International Criminal Court, Addendum, Part II Proposals for a provision on the crime of aggression, PCNICC/2002/2/Add. 2 of 24 July 2002, 3, at I 1 and Discussion paper on the crime of aggression proposed by the Chairman, ICC-ASP/5/SWGCA/2 of 16 January 2007, at 3. [Back]
48. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945 (hereinafter 'IMT Charter' or 'Nuremberg Charter'); Special Proclamation of General MacArthur, the Supreme Commander for the Allied Powers, of 19 January, 1946 (hereinafter 'IMTFE Charter'). [Back]
49. See e.g. Weigend, supra note 24, at 113; Parmas and Ploom, supra note 24, at 123. An Estonian Commentary bases individual criminal responsibility on 'strategic leadership in a war as a whole', a person giving orders and instructions for warfare on the highest state level (political and military governance). State representatives as well as other persons not belonging to the public service, but having nevertheless sufficient power to commit the crime (e.g. leaders of the political party currently in power or an influential business figure) similarly qualify as perpetrators. See para. 91 in J. Sootak and P. Pikamäe (eds), Penal Code. The Commented Edition (2nd edn, Tallinn: Juura, 2004), at 4.2 and 5. [Back]
50. Art. 442 Montenegrin criminal code; see also Art. 386 Serbian criminal code. Employment of the conduct verb 'order' has also been discussed on the international level, see in this sense, e.g., Art. 16 1996 Draft Code; 2002 Discussion Paper, at I 1; 2007 Discussion Paper I 1 Variant (a). [Back]
51. See, e.g., ICTR, Judgement, Akayesu, Chamber I, 2 September 1998, para. 483: 'Ordering implies a superior-subordinate relationship between the person giving the order and the one executing it. In other words, the person in a position of authority uses it to convince another to commit an offence'; see also ICTR, Judgement, Rutaganda, Trial Chamber, 6 December 1999, para. 39; ICTR, Judgement, Musema, Trial Chamber, 27 January 2000, para. 121. [Back]
52. Art. 157(3) Croatian criminal code. [Back]
53. See Art. 8 IMT Charter yet allowing for the mitigation of punishment, and Art. 33 ICCSt refining the applicable test. [Back]
54. Art. 33(1) ICCSt specifies that acting pursuant to an order may relieve a person under the legal obligation to obey such orders (litera a) from criminal responsibility, if the person did not know that the order was unlawful (litera b) and the order was not manifestly unlawful (litera c). According to Art. 33(2), only orders to commit genocide or crimes against humanity are 'manifestly unlawful'. The test for a subordinate under a legal obligation to obey an order with regard to the crime of aggression, therefore, would probably be whether the person knew that the order was unlawful. [Back]
55. Para. 91 Estonian criminal code. [Back]
56. '[T]he highest state authority' according to Art. 385 ofthe Armenian criminal code is to be understood as 'the President of the Republic of Armenia, the members of the Government of the Republic of Armenia, the members of the National Assembly of the Republic of Armenia', ibid., para. 3. Art. 405 of the Georgian criminal code refers to 'a person holding a statepolitical office'; see also references to an 'official holding a responsible position', Art. 156 Kazakh criminal code; 'civil servant' Art. 298 Mongolian criminal code; or 'holding a state position' Art. 396 Tajik criminal code. [Back]
57. See Art. 6(a) IMT Charter and Art. 5(a) IMTFE Charter respectively. The definitions of crimes against peace in these documents differ only in that Art. 5(a) specifies a war of aggression to be 'declared or undeclared'. Further references to Art. 6(a) IMT Charter are therefore understood as to comprise Art. 5(a) IMTFE Charter. The IMT judgement confirmed, '[t]he argument that such common planning cannot exist where there is complete dictatorship is unsound ... Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats and businessmen', Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946, Vol. I (1947), at 226. [Back]
58. Art. 1 IMT and IMTFE Charter. [Back]
59. For an overview, see Historical review of developments relating to aggression, PCNICC/2002/ WGCA/L. 1/Add. 1 of 18 January 2002, at 32 ff. [Back]
60. Art II para. 2(f) Control Council Law No. 10. As occupation law, Control Council Law No. 10 is not a direct source of international law, but has frequently been invoked as one indicator in determining international customary law (see e.g. ICTY, Tadic, App. Ch. Judgement, 15 July 1999, para. 289). Given the exceptional appearance of the leadership element in this legal text, its customary nature cannot be assumed per se. Applying the 'high position' standard, e.g. in the High Command case, the accused were acquitted of the count of crimes against peace since '[t]he acts of commanders and staff officers below the policy level ... do not constitute the planning, preparation, initiation and waging of war or the initiation of invasion'; criminality was not determined by their rank or status, but by the defendants 'power to shape or influence the policy of his state' (Trials of War Criminals before the Nuremberg Military Tribunals. Vol. XI (1950), 462, at 490-191). The I.G. Farben case, though the accused were again acquitted for being followers rather then leaders, confirmed that economic leaders can be held accountable for crimes against peace (Trials of War Criminals before the Nuremberg Military Tribunals. Vol. VIII (1952), 1081, at 1126). For details on the applied 'shape or influence' test see K.J. Heller, 'Retreat from Nuremberg: The Leadership Requirement in the Crime of Aggression', European Journal of International Law 18 (2007), 477, at 482 ff. [Back]
61. Report of the International Law Commission on the work of its second session, 5 June to 29 July 1950, Yearbook of the International Law Commission 1950, Vol. II, at 374. [Back]
62. Ibid., at 376. The ILC did not intend that 'everyone in uniform who fought in a war of aggression' should be charged with waging such a war. [Back]
63. See Art. 2(1) Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its third session, 16 May to 27 July 1951, Yearbook of the International Law Commission 1951, Vol. II, 134 ff., hereinafter '1951 Draft Code', and Art. 2(1) Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its sixth session, 3 June to 28 July 1954 (A/2693), 462 ff., hereinafter '1954 ILC Draft Code'. [Back]
64. See, e.g., Art. 2(12), 1951 ILC Draft Code and Commentary thereto, ibid., at 137. [Back]
65. Report of the International Law Commission on the work of its fortieth session, 9 May to 29 July 1988, Yearbook of the International Law Commission 1988, Vol. II (Part 2), at 72. [Back]
66. See draft Art. 12(1), 1988 ILC Report, supra note 65, at 71. [Back]
67. Report of the International Law Commission on the work of its forty-third session, 29 April to 19 July 1991, Yearbook of the International Law Commission 1991, Vol. II (Part 2), at 93. [Back]
68. Art. 15 Draft Code of Crimes Against the Peace and Security of Mankind, 1991 ILC Report, supra note 67, 94 ff., hereinafter '1991 ILC Draft Code'. [Back]
69. See, e.g., 1995 ILC Report, at 35. [Back]
70. 1996 ILC Draft Code, at 83. [Back]
71. 1996 ILC Draft Code, at 83. Critically whether the 'control or direct' test currently referred to would include all groups of perpetrators, see Heller, supra note 60, at 488. [Back]
72. For details on alternative terminology regarding the act of state, see infra C. [Back]
73. Whereas the differentiated approach would formulate the definition in a neutral way and regulate modes of participation in the General Part. See generally Discussion paper 1: The Crime of Aggression and Article 25, paragraph 3, of the Statute, Assembly of States Parties to the Rome Statute of the International Criminal Court, Fourth session, The Hague, 28 November to 3 December 2005, Official Records, ICC-ASP/4/32, Annex II.B, at 376; 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, United States of America, 8-11 June 2006, ICC-ASP/5/SWGCA/INF. 1, hereinafter '2006 Princeton Report', paras 84 ff. [Back]
74. See in this direction also 2007 Princeton Report, para. 7. [Back]
75. Art. 6(a) IMT Charter defines crimes against peace as 'planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing'. Art. 5(a) IMTFE Charter employs the same definition, though specifying the war of aggression as 'declared or undeclared'. [Back]
76. Art. 384(1) Armenian criminal code; Art. 409 Bulgarian criminal code; Art. 404(1) Georgian criminal code; Art. 156(1) Kazakh criminal code; Section 72 Latvian criminal code; Art. 139 Moldovan criminal code; Art. 353 Russian criminal code; Art. 396 Tajik criminal code; Art. 437 Ukrainian criminal code; Art. 151 Uzbek criminal code. [Back]
77. Art. 384(1) Armenian criminal code; Art. 409 Bulgarian criminal code; para. 91 Estonian criminal code; Art. 404(1) Georgian criminal code; Art. 156(1) Kazakh criminal code; s. 72 Latvian criminal code; Art. 139 Moldovan criminal code; Art. 117(2) Polish criminal code; Art. 353 Russian criminal code; Art. 396 Tajik criminal code; Art. 437 Ukrainian criminal code; Art. 151 Uzbek criminal code. [Back]
78. Different conduct verbs are used, e.g., 'starting' Art. 384(2) Armenian criminal code; 'unleashing', Art. 404(2) Georgian criminal code; Art. 139 Moldovan criminal code; Art. 353 Russian criminal code; Art. 3 96 Tajik criminal code; Art. 156(1) Kazakh criminal code; 'stirring up of an armed conflict', Art. 297 Mongolian criminal code; Art. 117(1) Polish criminal code; 'commencement', Art. 151 Uzbek criminal code. [Back]
79. Art. 409 Bulgarian criminal code; Art. 157(1) Croatian criminal code; Art. 404(2) Georgian criminal code; Art. 139 Moldovan criminal code; Art. 117(1) Polish criminal code; Art. 353 Russian criminal code; Art. 437 Ukrainian criminal code. Some translations use the term 'conduct', e.g. Art. 384(2) Armenian criminal code; Art. 156(1) Kazakh criminal code; Section 72 Latvian criminal code; Art. 396 Tajik criminal code; Art. 151 Uzbek criminal code. [Back]
80. Para. 91 Estonian criminal code; s. 72 Latvian criminal code; see infra C. [Back]
81. Art. 409 Bulgarian criminal code, for instance, punishes a person '[w]ho plans, prepares or wages aggressive war'; para. 91 Estonian criminal code limits criminal responsibility to 'leading or participating in preparations for a war of aggression'. [Back]
82. See in this regard, s. 72 Latvian criminal code; Art. 437 Ukrainian criminal code; Art. 151 Uzbek criminal code. [Back]
83. Art. 386 Serbian criminal code; Art. 442 Montenegrin criminal code. For implications on the leadership element see supra note 50. [Back]
84. Art. 165 Bosnian federal criminal code; Art. 157 para. 4 Croatian criminal code; Art. 405(1) Georgian criminal code; Art. 442 Montenegrin criminal code; Art. 386 Serbian criminal code; Art. 385 Slovenian criminal code. [Back]
85. E.g., Art. 165 Bosnian federal criminal code; Art. 408 Bulgarian criminal code; Art. 157 para. 4 Croatian criminal code; Art. 130 Kosovar criminal code; Art. 442 Montenegrin criminal code; Art. 386 Serbian criminal code; Art. 385 Slovenian criminal code. [Back]
86. E.g., Art. 385 Armenian criminal code; Art. 130 Kosovar criminal code; see also 'public appeals to unleash an aggressive war' Art. 354 Russian criminal code and Art. 396 Tajik criminal code. [Back]
87. E.g., s. 77 Latvian criminal code; Art. 117(3) Polish criminal code; former Art. 236 Portuguese criminal code. Art. 114 Cuban criminal code does not only cover incitement to a war of aggression; the provision equally provides punishment for instigating the public in favour of war during the course of diplomatic negotiations for the peaceful solution of an international conflict. [Back]
88. Section 72 Latvian criminal code holds accountable 'a person who commits crimes against peace, that is, commits planning, preparation or instigation of, or participation in, military aggression'. It should be kept in mind that instigation to war in some countries is codified as a treasonable offence (e.g. Chapter 12 s. 2 Finnish criminal code). For details see infra 3 B. [Back]
89. See, e.g., Art. 157 Croatian criminal code; Arts 404 and 405 Georgian criminal code; s. 72 Latvian criminal code; Arts 436 and 437 Ukrainian criminal code. [Back]
90. See, e.g., Art. 165 Bosnian federal criminal code; Art. 442 Montenegrin criminal code; Art. 386 Serbian criminal code. Section 153 Hungarian criminal code and former Art. 236 Portuguese criminal code expressly implement incitement to war as a crime against peace. For the Portuguese provision see, e.g., M. J. Antunes, 'Titulo III - Dos crimes contra a paz e a humanidade', in J. De Figueiredo Dias (ed.), Comentário Conimbricense do Código Penal, Parte Especial, Tomo II (Coimbra: Coimbra Edition, 1999), 599, at 559. [Back]
91. On the international level, instigation, as opposed to public incitement, is usually understood as a mode of participation in the crime, not an inchoate offence. See, e.g., '"Instigating" means prompting another to commit an offence' (ICTY, Judgement, Krstic, Trial Chamber, 2 August 2001, para. 601; ICTY, Judgement, Blaskic, Trial Chamber, 3 March 2000, para. 280); 'By urging or encouraging another person to commit a crime, the instigator may contribute substantially to the commission of the crime.' ICTR, Judgement, Bagilishema, Trial Chamber, 7 June 2001, para. 30). National criminal codes seem to use these notions interchangeably, at least as regards their English translation, see e.g. infra note 93. [Back]
92. Art. 408 Bulgarian criminal code. [Back]
93. E.g. Art. 407 Bulgarian criminal code; para. 92 Estonian criminal code; s. 153 Hungarian criminal code; Art. 157 Kazakh criminal code; Art. 140 Moldovan criminal code; Art. 298 Mongolian criminal code; Art. 436 Ukrainian criminal code; Art. 150 Uzbek criminal code. Art. 115 Cuban criminal code only criminalizes the distribution of false information with the purpose of disturbing international peace. The borders between instigation, incitement and war propaganda are permeable. In some cases these notions seem interchangeable in others they define distinct criminal acts. Para. 92. Estonian criminal code, for instance, defines 'propaganda for war' as 'any incitement to war'. The Bulgarian criminal code, on the other hand, contains separate provisions on propaganda of war (Art. 407) and war instigation (Art. 408). [Back]
94. GA Res. 2200A (XXI), of 16 December 1966. For details on Art. 20 ICCPR see M. Kearney, The Prohibition of Propaganda for War in International Law (Oxford: Oxford University Press, 2007). See in this context also, GA Resolution 380 (V) which condemns 'incitement to conflicts or acts of aggression' as 'propaganda against peace'. It should be noted in this regard, that some states have implemented their obligation under the ICCPR as a crime under national law, see infra 3 B. [Back]
95. See in this regard M. Nowak, U.N. Covenant on Civil and Political Rights (2nd edn, Oxford: Clarendon Press, 2005), at 474. [Back]
96. See http://www2.ohchr.org/english/bodies/ratification/4.htm (visited 26 January 2009). [Back]
97. Australia, Belgium, Denmark, Finland, France, Iceland, Ireland, Luxembourg, Malta, Netherlands, New Zealand, Norway, Sweden, Switzerland, Thailand, United Kingdom of Great Britain and Northern Ireland, United States of America. See http://www.unhchr.ch/pdf/report.pdf (visited 30 September 2009). For freedom of speech concerns reflected in the vote on the adoption of the ICCPR see Nowak, supra note 95, at 471. [Back]
98. In response to the 1954 ILC Report, several representatives spoke up for a future inclusion of the prohibition of war propaganda in the ILC Draft Code, e.g., Mongolia, Bulgaria, Afghanistan. See Analytical paper prepared pursuant to the request contained in para. 256 of the report of the Commission on the work of its forty-fourth session, UN Doc A/Cn.4/365, 25 March 1983, para. 89. [Back]
99. For the concept of animus aggressionis as requiring an alleged perpetrator of the crime of aggression to act with a specific intent see, e.g., S. Glaser, 'Culpabilite en droit international penal', 99 Recueil des Cours (1960), 467, at 504 and A. Cassese, 'On Some Problematical Aspects of the Crime of Aggression', 20 Leiden Journal of International Law (2007), 841, at 848. However, international law sources do not reflect such an element. Accordingly, the current negotiations on the crime of aggression demand 'intent and knowledge' to commit the criminal conduct and 'knowledge' with regard to the existence of an act of aggression by the state; see, e.g., R. Clark. 'Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court', 15 Leiden Journal of International Law (2002), 859, at 875 ff. [Back]
100. See, in particular, former Art. 236 Portuguese criminal code. The crime of 'incitement to war' was defined by 'inciting hatred against a people', Portuguese or other, with the specific intent to 'unleash a war'. For details see Antunes, supra note 90, at 562. Art. 5 Portuguese criminal code provided universal jurisdiction over this crime, see also infra note 135. [Back]
101. If such acts reach the necessary threshold of an act of aggression and are attributable to the state, conduct falling under the definition of these offences may come close to the crime of aggression. For details see infra 3. [Back]
102. Section 153 Hungarian criminal code refers to recruitment on Hungarian territory 'for military service, paramilitary service or for military training in a foreign armed organization'. See in this regard also former Art. 237 Portuguese criminal code which applied to the 'recruitment of elements of the Portuguese armed forces for a war against a foreign state or territory'. For details Antunes, supra note 90, at 563-565. [Back]
103. Art. 110(1) Cuban criminal code; see also Art. 111, ibid. [Back]
104. Art. 112 Cuban criminal code. [Back]
105. Art. 154 Venezuelan criminal code. [Back]
106. Art. 312 Panamanian criminal code. [Back]
107. Arts 110 and 112 Cuban criminal code fall under Title I 'delitos contra la seguridad del estado', Chapter III 'delitos contra la paz y el derecho internacional'; Art. 312 Panamanian criminal code can be found under Title IX 'de los delitos contra la personalidad jurídica del estado', Chapter III 'delitos contra la comunidad internacional'; and Art. 154 Venezuelan criminal code under Title I 'de los delitos contra la independencia y la seguridad de la nación', Chaper III 'de los delitos contra el derecho internacional'. [Back]
108. Art. 384 Armenian criminal code; Art. 165 Bosnian federal criminal code; Art. 409 Bulgarian criminal code; Art. 157 Croatian criminal code; § 91 Estonian criminal code, Art. 404 Georgian criminal code; Art. 156 Kazakh criminal code; Art. 130 Kosovar criminal code; Art. 442 Montenegrin criminal code; Art. 117 Polish criminal code; Art. 353 Russian criminal code; Art. 385 Slovenian criminal code; Art. 395 Tajik criminal code; Art. 437 Ukrainian criminal code, Art. 151 Uzbek criminal code. [Back]
109. Section 153 Hungarian criminal code; Art. 139 Moldovan criminal code. [Back]
110. Section 72 Latvian criminal code. [Back]
111. Art. 130 Kosovar criminal code; Art. 297 Mongolian criminal code; Art. 437 Ukrainian criminal code. [Back]
112. Art. 437 Ukrainian criminal code. [Back]
113. Weigend, supra note 24, at 112. [Back]
114. GA Res. 3314 (XIXX), 14 December 1974. See, e.g., Weigend, supra note 24, at 113; Skulic, ibid., at 241. [Back]
115. See in this regard Weigend, supra note 24, at 113. The Convention for the Definition of Aggression of 3 July 1933 (LNTS 1934, 69) was signed by Afghanistan, Estonia, Latvia, Persia, Poland, Romania, the Soviet Union, Turkey and later Finland; it entered into force on 16 October 1933. See, e.g., B. Broms, 'The Definition of Aggression', Recueil des Cours 154 (1978), 301, at 389; B. Ferencz, Defining International Aggression. The Search for World Peace. A Documentary History and Analysis (1975), Vol. I The Tradition of War and the Aspiration of Peace (New York: Oceana Publications Inc., 1975), at 34. For details on the negotiations of the Disarmament Conference 1932-34 and the Litvinov-Politis proposal, see Reisinger Coracini, supra note 27, at III C 1. [Back]
116. See, e.g., Skulic, supra note 24, at 241; M. Hummrich, Der völkerrechtliche Straftatbestand der Aggression: historische Entwicklung, Geltung und Definition im Hinblick auf das Statut des Internationalen Strafgerichtshofes (Baden-Baden: Nomos, 2001), at 87. [Back]
117. Chapter XIII Croatian criminal code dealing with crimes under international law was amended in 2004 to bridge gaps between the existing definitions of crimes and the definition of core crimes in the Rome Statute. Above all, the former criminal code did not include crimes against humanity as a separate offence. For details see Novoselec, supra note 24, at 43. See also P. Novoselec, 'Substantive International Criminal Law Amendments of the Croatian Criminal Code of 15 July 2004', in I. Josipovic (ed.), Responsibility for War Crimes (Zagreb: University Press, 2005), 255, at 260-261. [Back]
118. Art. 157(1) and (2) Croatian criminal code. [Back]
119. Revised proposal submitted by a group of interested states, including Germany, Preparatory Committee on the Establishment of an International Criminal Court, 16 March-3 April 1998, A/AC.249/1998/ DP. 12 of 1 April 1998; see also Informal Discussion Paper submitted by Germany, Preparatory Committee on the Establishment of an International Criminal Court, 1-12 December 1997, Working Group on Definitions and Elements of Crime, A/AC.249/1997/WG.1/DP.20 of 11 December 1997. [Back]
120. See, e.g., 2007 Princeton Report, paras 36 ff. [Back]
121. Para. 91 Estonian criminal code; s. 72 Latvian criminal code similarly refers to 'war of aggression in violation of international treaties, agreements or assurances'. [Back]
122. Earlier, the aspect of individual criminal responsibility for the violation of certain international treaties as aggression can be traced to Art. 227 Versailles Peace Treaty, 28 June 1919, by which former German Emperor Wilhelm II was publicly arraigned 'for a supreme offence against international morality and the sanctity of treaties'. A major accusation of aggressive acts related to the violation international treaties guaranteeing the neutrality of Belgium and Luxembourg; for details see Commission on the Responsibilities of the Authors of the War and on Enforcement of Penalties, Report presented to the Preliminary Peace Conference, March 29 1919, printed in AJIL 14 (1920), 95, at 107, 112. For details on the principle pacta sunt servanda in the context of the crime of aggression, see Reisinger Coracini, supra note 27, at III B 2. [Back]
123. 1950 ILC Report, at 376. See in this regard also Discussion paper proposed by the Coordinator, Preparatory Commission for the International Criminal Court, Working Group on the Crime of Aggression, PCNICC/1999/WGCA/RT. 1 of 9 December 1999. [Back]
124. Principle VI (a)(i), 1950 ILC Report, at 376. [Back]
125. However, the provision has to be seen in the context of protecting state security (see Title I, Chapter IV Bolivian criminal code). See also supra text before note 107. Comparable offences can be found in Art. 220 Argentinian criminal code; Art. 113 Chilean criminal code; Art. 123 Ecuadorian criminal code; Art. 340 Peruvian criminal code. These norms criminalize domestically certain violations of international law, which at the same time constitute a danger for the peace and national security of a state, see e.g. for Chile, A. Etcheberry, Derecho Penal (3rd edn, Santiago: Editorial Juridica de Chile, 1997), at 110; for Argentina, E.A. Donna, Derecho Penal, Parte Especial (Tomo II-C, Madrid: Global Publisher, 2002), at 396-397. [Back]
126. Art. 16(2), 1991 ILC Draft Code, defined the crime of threat of aggression as 'declarations, communications, demonstrations of force or any other measures which would give good reason to the Government of a State to believe that aggression is being seriously contemplated against that State'; see also Art. 2(2), 1954 ILC Draft Code and generally GA Resolutions 2625 (XXV), 24 October 1970 and 42/22, 18 November 1987. [Back]
127. All examined states, which implement the crime of aggression, provide for jurisdiction on the principle of territoriality. See, e.g., Art. 14 Armenian criminal code; Art. 130 Bosnian federal criminal code; Article 13 Croatian criminal code; Art. 6 Estonian criminal code; Art. 4 Georgian criminal code; s. 4(3) Latvian criminal code. [Back]
128. For the passive personality or protective principle see, e.g., Art. 15(3)(2) Armenian criminal code; Art. 132 Bosnian criminal code (Brcko district); Art. 9 Estonian criminal code; Art. 5(3) Georgian criminal code; Art. 6 para. 4 Kazakh criminal code. [Back]
129. Very explicit in that regard, e.g., Art. 6 para. 2 Kazakh criminal code. [Back]
130. See, e.g., Art. 15(2) Armenian criminal code; Art. 132 Bosnian federal criminal code; Art. 14(2) Croatian criminal code; Art. 7 Estonian criminal code; Art. 5 Georgian criminal code; Section 3 Hungarian criminal code; Art. 6 Kazakh criminal code; Section 4(3) Latvian criminal code. Given the leadership nature of the crime of aggression and frequent restrictions of public employment to nationals, potential perpetrators of this crime will be nationals of the aggressor state in many cases. [Back]
131. But see also, e.g., s. 12.3. Azerbaijani criminal code. [Back]
132. Art. 6(1) Bulgarian criminal code. The reference to another state's interests instead of the common interest of the international community as a whole brings this provision in vicinity of the principle of vicarious jurisdiction. See in this regard also, e.g., Art. 14 para. 4 Croatian criminal code. In relation to vicarious jurisdiction, some states expressly exclude the requirement of double criminality for the crime of aggression: see, e.g., Art. 15(2) Armenian criminal code. [Back]
133. Art. 11 Moldovan criminal code. [Back]
134. Art. 14 paras 4 and 5 Croatian criminal code. For details see Novoselec, supra note 117, at 262. [Back]
135. Section 4(1)(c) Hungarian criminal code states that 'Hungarian law shall also be applied to acts committed by non-Hungarian citizens abroad, if they are ... crimes against humanity (Chapter XI) or any other crime, the prosecution of which is prescribed by an international treaty', See in this regard also former Art. 5(1)(b) Portuguese criminal code which specified that this jurisdictional basis is only applicable if not banned by an international treaty, if the perpetrator is present on Portuguese territory and cannot be extradited. [Back]
136. Art. 15(3)(1) Armenian criminal code; para. 8 Estonian criminal code; Art. 5(2) and (3) Georgian criminal code; Art. 6 para. 4 Kazakh criminal code; Art. 15(2) Tajik criminal code. [Back]
137. In addition to the four signatory states of the London Agreement, France, the USSR, United Kingdom and United States of America, 19 states ratified or acceded to the Agreement: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, Yugoslavia. [Back]
138. See in that regard, e.g., s. 4(3) Latvian criminal code; Art. 14.4. Mongolian criminal code; Art. 12(3) Russian criminal code. [Back]
139. For the one judicial decision on Art. 80 German criminal code (supra 3 A) see L.G. Koln, NStZ, 1981, 261; for details G. Werle, Völkerstrafrecht (Tubingen: Mohr Siebeck, 2007), margin No. 1321. See in this regard also C. Kress, 'The German Chief Federal Prosecutor's Decision Not to Investigate the Alleged Crime of Preparing Aggression against Iraq', 2 JICJ (2004), 245. [Back]
140. For a rough overview of anti-war litigation before United States tribunals, see C. Villarino Villa, 'The Crime of Aggression before the House of Lords - Chronicle of a Death Foretold', 4 Journal of International Criminal Justice (2006), 866, at 876, note 53. On the House of Lords decision in R. v Jones et al., supra at 21, see, e.g., R. Clark, 'Aggression: A Crime Under Domestic Law?', New Zealand Law Journal (Oct. 2006), 349; R. Cryer, 'Aggression at the Court ofAppeal', 10 Journal of Conflict & Security Law (2005), 209, at 230; D.M. Ferencz, 'Introductory Note to the United Kingdom House of Lords: R v. Jones et al.', 45 International Legal Materials (2006), 988; Villarino Villa op. cit. [Back]
141. E.g., s. 1 Albanian criminal code; Chapter 8 Norwegian criminal code; Art. 266 Swiss criminal code. [Back]
142. E.g., s. 1 Finnish criminal code; Title I Uruguayan criminal code. [Back]
143. E.g., Title IX Argentinian criminal code; Title I Bolivian criminal code; Title I Cuban criminal code; Title XI Guatemalan criminal code; Chapter 8 Norwegian criminal code; Chapter 19 Swedish criminal code. [Back]
144. E.g., Title I, Chapter 1 Italian criminal code, Title IX, Chapter 1 Panamanian criminal code. [Back]
145. E.g., Title VII, Chapter I Paraguayan criminal code. [Back]
146. E.g., Division 1, Chapter VII Fijian criminal code (the same division contains the crime of genocide in Chapter VIII); Chapter VI Indian criminal code. [Back]
147. See, e.g., Title IX, Chapter II Argentinian criminal code ('delitos que comprometen la paz y la dignidad de la Nacion'); Art. 546 Nicaraguan criminal code ('delito contra la paz de la República'); Chapter 1 German criminal code ('Friedensverrat, Hochverrat und Gefährdung des demokratischen Rechtsstaates'). [Back]
148. See Art. 17(1)(a) to (c) ICCSt. [Back]
149. See also Art. 20(3) ICCSt. For details see Tallgren and Reisinger Coracini, supra note 11, at margin No. 39 ff. [Back]
150. For details see supra 2 A. [Back]
151. For details see supra 2 B. [Back]
152. Sections 80 and 80a of the German criminal code were introduced in 1968 to implement a constitutional law obligation, Art. 26(1) German Basic Law. It declares unconstitutional acts which may disturb the peaceful coexistence of peoples, in particular, the preparation of a war of aggression, and obliges the German legislature to criminalize such conduct under domestic law. Since this prohibition is not limited to the preparation of a war of aggression in which Germany would be participating, the constitutional obligation has only been partly fulfilled by s. 80 of the German criminal code. For details see, e.g., Gropengießer/ Kreicker, supra note 24, at 242-244. [Back]
153. For divergent opinions regarding the legal values protected by s. 80 of the German criminal code, see e.g., Gropengießer/Kreicker, supra note 24, at 245, note 1026; C. Kress, 'Strafrecht und Angriffskrieg im Licht des "Falles Irak"', 115 Zeitschrift für die gesamte Strafrechtswissenschaft (2003), 294, at 337-339. [Back]
154. See supra note 147. [Back]
155. See e.g., Werle, supra note 139, margin No. 1322, with further references in note 123. [Back]
156. See e.g., Werle, supra note 139, margin No. 1322; see also Kress, supra note 153, at 344-8. [Back]
157. For details see Gropengießer/Kreicker, supra note 24, at 244, with further references in note 1021. [Back]
158. Art. 271(1) Paraguayan criminal code; its para. 2 establishes criminal responsibility also for attempt to prepare a war of aggression. [Back]
159. Art. 7(1) Paraguayan criminal code. [Back]
160. Title VII, Chapter I Paraguayan criminal code. [Back]
161. Additional charges of preparing an act of aggression are likely to be inadmissible according to Art. 17 ICCSt. Similarly, if the alleged perpetrator has already been tried the Court might proceed with its case in relation to conduct which forms the basis for the charge of initiation and the waging of aggression, though charges based on conduct relative to the preparation of such acts would be inadmissible. See Art. 20(3) ICCSt, if applicable for the crime of aggression, and supra 1A. [Back]
162. Chapter IV Japanese criminal code. [Back]
163. For details see supra 2B. [Back]
164. See e.g. Chapter 5 Australian criminal code; Chapter 12 Finnish criminal code; Chapter 1 German criminal code, supra note 154; Title XIII Chapter I Nicaraguan criminal code; Chapter 6 Nigerian criminal code. [Back]
165. See supra note 152. [Back]
166. No extraterritorial application of the German criminal code is provided for in s. 80a; compare supra note 157. [Back]
167. Art. 274 Romanian criminal code. The two norms are based on a constitutional obligation. Art. 30 para. 7 Romanian Constitution provides inter alia, that 'any instigation to a war of aggression, ... shall be prohibited by law'. See in this regard also Art. 356 Romanian criminal code of 1969, which however categorized propaganda of war as a crime against peace. [Back]
168. Art. 12 Romanian criminal code. [Back]
169. Art. 276 Romanian criminal code. See in this regard also Art. 115 Cuban criminal code, supra note 93. [Back]
170. Section 2 Finnish criminal code falls within Chapter 12 on treasonable offences. See also infra 3D1. [Back]
171. Division 80.1 (1)(g) Australian criminal code. [Back]
172. Para. 38 Nigerian criminal code; see also, e.g., for Ireland, Treason Act 1939 (based on Art. 39 Irish Constitution); s. 53 (c) Fijian criminal code; Art. 315 Guyanese Criminal Law (Offence) Act; s. 48 criminal code of Kiribati; Art. 37(g) Papua New Guinean criminal code; Section 73(d) Crimes Act 1961 of New Zealand; Art. 115 Philippine criminal code; Section 38 Nigerian criminal code; s. 3 Treason Felony Act 1848 of the United Kingdom ('to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty's dominions or countries under the obeisance of her Majesty'); s. 59(1)(c) criminal code of Vanuatu; s. 43(1)(e) Zambian criminal code. [Back]
173. Art. 528 para. 5 Nicaraguan criminal code; see also, e.g., Art. 123 para. XI Mexican criminal code; Art. 581 Spanish criminal code. Art. 315(2) Argentinian criminal code contains a similar provision, which however is only applicable during times of war. In that case it would, for instance, cover the incitement of a third state to enter the war against Argentina. See in this sense Donna, supra note 125, at 380-381. For a definition of propaganda of war see, e.g., Art. 22 III Brazilian Lei de Segurança Nacional (1983). [Back]
174. For details see infra C. [Back]
175. For details see supra A. [Back]
176. Art. 121 and Art. 121A Indian criminal code. For details see B.M. Gandhi, Indian Penal Code (Lucknow: Eastern Book, 1996), at164; R. Ranchhoddas and D. K. Thakore, The Indian Penal Code (28th edn, Delhi: Wadhwa and Company, 1997), at 161. [Back]
177. Art. 125 Indian criminal code. [Back]
178. Section 46(1)(b) Canadian criminal code; Irish Treason Act 1939 (implementing Art. 39 Irish Constitution); s. 73(b) Crimes Act 1961 of New Zealand; s. 37(1) Nigerian criminal code; s. 2381 United States Code (18USC2381). [Back]
179. Section 53(b) Fijian criminal code; para. 37 (e) Papua New Guinean criminal code. [Back]
180. Section 80.1 (d) Australian criminal code. [Back]
181. See, e.g., Irish Treason Act 1939; Art. 115 Philippine criminal code; s. 73(f) Crimes Act 1961 of New Zealand; s. 37(2) Nigerian criminal code; s. 59(1)(e) criminal code of Vanuatu. [Back]
182. See, e.g., s. 80.1(d) Australian criminal code; s. 46(1)(b) Canadian criminal code. [Back]
183. See, e.g., Irish Treason Act 1939; Art. 114 Philippine criminal code; s. 2381 United States Code (18USC2381). [Back]
184. See Treason Act 1351, which enacted a common law offence: 'if a Man do levy War against our Lord the King in his Realm, or be adherent to the King's Enemies in his Realm, giving to them Aid and Comfort in the Realm, or elsewhere, and thereof be [probably] attainted of open Deed by [the People] of their Condition.' Before that treason was a common law offence. For details see, e.g., M.E.J. Black, 'Five Approaches to Reforming the Law: 650 Years of Treason and Sedition'. Keynote Address at the Australasian Law Reform Agencies Conference 2006. Available at http://www.alrc.gov.au/events/events/alrac/Presentations/BlackCJ.pdf, at 4 (visited 26 March 2009). [Back]
185. See, in particular, s. 3 Treason Felony Act 1848 of the United Kingdom; for details see W. Blackstone, Commentaries on the Laws of England (1765-1769), Book IV, Chapter 6 (Chicago and London: University of Chicago Press, 1979), at 78. See also, e.g., s. 80.1(h) Australian criminal code; s. 53 Fijian criminal code; s. 50 criminal code of Kiribati; s. 41 Nigerian criminal code. [Back]
186. Section 1(1) and (2) Irish Treason Act 1939; s. 3 Treason Felony Act 1848 of the United Kingdom; s. 73 Crimes Act 1961 of New Zealand; Art. 114 Philippine criminal code; s. 2381 United States Code (18USC2381); s. 59 (1)(e) criminal code of Vanuatu. Sections 80.4 and 15.4 Australian criminal code provide extended geographical jurisdiction for treason. See also, e.g., Gandhi, supra note 176, at 165. [Back]
187. Art. 114 Philippine criminal code ('allegiance to (the United States or) the Government of the Philippine Islands'); s. 73 Crimes Act 1961 of New Zealand; s. 2381 United States Code (18USC2381); s. 59 (1)(e) criminal code of Vanuatu. [Back]
188. Section 46 Canadian criminal code; s. 1(2) Irish Treason Act 1939; s. 43(3) Zambian criminal code. [Back]
189. See, e.g., Art. 212 Albanian criminal code; Art. 8 Brazilian Lei de Seguranja Nacional (1983); Art. 106 Chilean criminal code; Art. 115 Ecuadorian criminal code; Art. 139 Greek criminal code; Art. 362 Guatemalan criminal code; Art. 114 Luxembourgian criminal code; Art. 528 para. 5 Nicaraguan criminal code; Art. 266 Swiss criminal code. [Back]
190. Art. 208 Albanian criminal code; para. 242 Austrian criminal code; Chapter 12, s. 1 Finnish criminal code; Art. 528(3) Nicaraguan criminal code. [Back]
191. Art. 115 Ecuadorian criminal code; Art. 106 Chilean criminal code. [Back]
192. Art. 362 Guatemalan criminal code. [Back]
193. Art. 91 Cuban criminal code reads: 'El que, en interes de un Estado extranjero, ejecute un hecho con el objeto de que sufra detrimento la independencia del Estado cubano o la integridad de su territorio, incurre en sancion de privacion de libertad de diez a veinte afios o muerte.' [Back]
194. Para. 158 Iraqi criminal code. Para. 9 Iraqi criminal code confirms extraterritorial jurisdiction of Iraqi courts for offences affecting the internal or external security of the state. The threshold for such countermeasures seems to be rather low, since they would be invoked solely 'for attempts to commit hostile acts against Iraq'. [Back]
195. See, e.g., s. 80.1(d) Australian criminal code; Art. 139 Greek criminal code; Art. 125 Indian criminal code. [Back]
196. See e.g. Donna, supra note 125, at 373; Etcheberry, supra note 125, at 99. [Back]
197. In the sixteenth century, the broadening of the statutory treason provisions in the United Kingdom through judicial interpretation was known as 'constructive treason', Black, supra note 184, at 8. In this context, serious forms of public protest, such as insurrection against a Statute of Labourers, were understood as a 'constructive levying of war', ibid., at 11. [Back]
198. See in this regard, e.g., the current Guardian's campaign at http://www.guardian.co.uk/Archive/Article/0,4273,4358082,00.html (visited 30 September 2009); see also Law Commission of England and Wales, Working Paper Number 72, Second Programme Item XVIII, Codification of the Criminal Law: Treason, Sedition and Allied Offences (1977), at 32. [Back]
199. Ambos and Malarino, supra note 24, at 476, note 19. [Back]
200. See, e.g., Title I Chapter I Cuban criminal code; Title I Chapter I Bolivian criminal code; Title I Chapter I Italian criminal code ('dei delitti contro la personalita internazionale dello stato'). [Back]
201. See, e.g., Title IX Chapter II Argentinian criminal code; Title VIII Chapter II Nicaraguan criminal code; Title XXIII Chapter II Spanish criminal code. [Back]
202. E.g., Art. 211 Albanian criminal code; Title XXIII Chapter II Spanish criminal code; Title I Uruguayan criminal code. [Back]
203. E.g., Chapter 12 Finnish criminal code; Art. 305 Honduran criminal code. [Back]
204. See Art. 92 Cuban criminal code: 'El que ejecute un hecho dirigido a promover la guerra o cualquier acto de agresión armada contra el Estado cubano, incurre en sanción de privación de libertad de diez a veinte años o muerte'. [Back]
205. See Art. 7(b) Albanian criminal code; Art. 5(1)(3) Cuban criminal code. [Back]
206. 'El que realizare en territorio salvadoreño reclutamiento u otro acto hostil contra un Estado extranjero de modo que expandiere al Estado salvadorefio al peligro de una guerra'. Art. 354 Salvadorian criminal code (emphasis added). [Back]
207. Ambos and Malarino supra note 24, at 476, note 19. [Back]
208. Art. 354 Salvadorian criminal code. A lesser penalty is foreseen for acts which (only) disturb external relations or provoke internal disturbances or reprisals, ibid. [Back]
209. See Art. 305 Honduran criminal code: 'El Hondureno, aunque haya perdido su nacionalidad, o el extranjero que deba obediencia a Honduras a causa de su empleo o función pública, quien con el propósito de provocar contra Honduras agresiin u hostilidades de una u otras naciones, ejecutare actos que tiendan directamente a ese fin, sufrirá reclusión de diez a quince anos.' Again, the actual waging of aggression or hostilities lifts the penalty frame, ibid. Art. 312 expands liability to acts against allied states. [Back]
210. Chapter 12, s. 2 para. 4 Finnish criminal code; see also supra text around note 170. [Back]
211. Chapter 19, s. 2 Swedish criminal code. [Back]
212. Para. 84 Norwegian criminal code. [Back]
214. See, e.g., Art. 219 Argentinian criminal code; Art. 114 Bolivian criminal code; Art. 339 Peruvian criminal code; Art. 118 Philippine criminal code; see also, e.g., former Art. 311 Portuguese criminal code. [Back]
215. These levels of intensity are also mirrored in the applicable penalties; see, e.g., the different penalty frames in Art. 244 Italian criminal code. [Back]
216. E.g. Art. 219 Argentinian criminal code; Art. 114. Bolivian criminal code; Art. 546 Nicaraguan criminal code; Art. 312 Panamanian criminal code; Art. 339 Peruvian criminal code ('friendly relations'). [Back]
217. E.g. Art. 114 Bolivian criminal code; Art. 546 Nicaraguan criminal code; Art. 339 Peruvian criminal code. [Back]
218. E.g. Art. 140 Greek criminal code; Art. 244 Italian criminal code; Art. 312 Panamanian criminal code; Art. 133 Uruguayan criminal code. [Back]
219. E.g. Art. 151(1) criminal code of Cote d'Ivoire; Art. 590 Spanish criminal code. [Back]
220. E.g. Art. 219 Argentinian criminal code; Art. 114 Bolivian criminal code; Art. 151(1) criminal code of Cote d'Ivoire; Art. 546 Nicaraguan criminal code; Art. 339 Peruvian criminal code; Art. 590 Spanish criminal code; Art. 133 Uruguayan criminal code. [Back]
221. Art. 118 Philippine criminal code. [Back]
222. See, e.g., Art. 219 Argentinian criminal code; Art. 114 Bolivian criminal code; Art. 244 Italian criminal code; Art. 140 Greek criminal code; Art. 313 Honduran criminal code; Art. 339 Peruvian criminal code. [Back]
223. See, e.g., Art. 590 Spanish criminal code. [Back]
224. See, e.g., Art. 118 Philippine criminal code; Art. 590 Spanish criminal code. [Back]
225. Art. 140 Greek criminal code. [Back]
226. Art. 133 Uruguayan criminal code. See in this regard also Art. 123 para. V Mexican criminal code and Art. 312 Panamanian criminal code, which is however categorized as a crime against the international community (see supra 2 B). [Back]
227. Art. 244 Italian criminal code. The Italian military code contains a similar provision for military leaders. For details see Jarvers and Grammer, supra note 24, at 378. [Back]
228. See, e.g., Art. 133 Uruguayan criminal code. [Back]
229. E.g. Art. 312 Panamanian criminal code; Art. 354 Salvadorian criminal code. [Back]
230. Art. 1 Argentinian criminal code, e.g,. limits the scope of application to Argentinian territory and to acts committed abroad by state officials. [Back]
231. See e.g. Art. 1 para. 4 Bolivian criminal code; Art. 7(1) Italian criminal code. [Back]
232. Art. 339 Peruvian criminal code does not criminalize the mere expression of such views, but only when they result in one of the described reactions by a third state, see, e.g., G. Calderon, Código Penal (3rd edn, Madrid: Universidad Complutense, reprinted 1997), at 516. [Back]
233. See supra notes 226 and 227. [Back]
234. Donna, supra note 125, at 393. [Back]
235. Authorization is to be understood as the express or implicit approval by the competent national organ. See in this sense, e.g., Donna, supra note 125, at 394. [Back]
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