4A.1 Crimes, principles of criminal law and jurisdiction

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77



require that the accused’s conduct was clearly proscribed, under international or national law, at the time of its commission.16

This part of the chapter will focus first on crimes against humanity,

which are prohibited under customary law (and which as a matter of

international law all states may exercise jurisdiction over), of direct relevance to the attacks of September 11. Whether individuals responsible for

September 11 might also be held to account for war crimes or aggression

is less apparent, although these crimes will be considered as potentially

relevant not only to 9/11 but to determining individual responsibility

for wrongs committed in the context of the use of force and the armed

conflicts that followed September 11. The chapter will then return to

the question of ‘terrorism’ and its status as a crime under international

law, discussed at Chapter 2, and conclude by reference to the obvious

basis for criminal responsibility – the many domestic crimes committed on September 11. The chapter does not however purport to address

the full range of national and international crimes that may have been

committed on 9/11, still less in response thereto.17



4A.1.1.1 Crimes against humanity

‘Crimes against humanity’ consist of certain acts – such as murder, torture or inhumane acts – directed against the civilian population on

a widespread or systematic basis. Although the first legal instrument

referring to ‘crimes against humanity’ is the Nuremberg Charter of

1945, their prohibition in international law long predates the Second



16



17



ICTY recently affirmed that international criminal conviction may be based solely on

the commission of treaty crimes, although, as demonstrated by the dissenting judgment

in that case, the consistency of this view with the principle of legality in criminal law

remains somewhat controversial. See Prosecutor v. Gali´, Case No. IT-98-29-T, Judgment,

c

5 December 2003, paras. 97–105, where the Trial Chamber of the ICTY found the accused

criminally responsible for the crime of inflicting terror on the civilian population under

Article 51 AP I, and held that it was unnecessary to establish whether the crime was

customary in nature; see dissenting judgment of Judge Nieto Navia on this point. Complex

questions as to how treaties become ‘binding’ on individuals provided one of the reasons

why treaty crimes were ultimately excluded from ICC jurisdiction. For the view that treaty

law may be considered applicable to individuals only so far as the individual commits

crimes on the territory of a state party to the treaty, see, e.g., A. Zimmerman, ‘Crimes

within the Jurisdiction of the Court’, in O. Triffterer (ed.), Commentary on the Rome

Statute of the International Criminal Court (Baden-Baden, 1999), pp. 98 ff.

While jurisdiction over the crime can be conferred or established after the fact (see this

chapter, para. 4A.1.3 below), ex post facto criminalisation would amount to a violation of

the basic principle of legality – nullum crimen sine lege – enshrined in systems of criminal

law and Article 15 of the ICCPR. See this chapter, para. 4A.1.2 below.

On violations committed during the ‘war on terror’ that may carry individual criminal

responsibility, such as war crimes and torture, see Chapters 6, 7 and 8.



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World War.18 It is now well established that crimes against humanity are

crimes under customary international law, hence prohibited irrespective

of the suspect’s nationality or of national laws.19

Unlike many other international crimes, such as war crimes or specific

forms of terrorism, this group of crimes has never been the subject of a

binding convention to which reference can be made to determine their

specific content. However, regard can be had to the ICC Statute, the first

treaty to set out comprehensive definitions of these crimes20 and to earlier

international instruments,21 as well as to the ample jurisprudence emanating from prosecutions for these crimes,22 to identify key elements of

the definition of crimes against humanity.

(a) Murder and inhumane acts It is uncontroversial that murder and

inhumane acts are among the acts that may amount to crimes against

humanity under customary law.23 Murder is a familiar term in domestic

laws,24 and has been held in an international context to consist of killing

18



19

20

21



22



23



24



M. C. Bassiouni, ‘Crimes against Humanity’, in Bassiouni, International Criminal Law,

pp. 522 ff. See also R. Dixon, ‘Article 7. Crimes against Humanity’, in Triffterer (ed.),

Commentary on the Rome Statute, pp. 121 ff.

Ibid. See also S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in

International Law: Beyond the Nuremberg Legacy (Oxford, 1998), pp. 140–1.

Article 10 ICC Statute notes that the definitions of all ICC crimes are for the purposes of

the Statute only.

See, e.g., the ILC’s Draft Code of Crimes against the Peace and Security of Mankind, Report

of the ILC on the work of its 48th session, 6 May–26 July 1996, GAOR, 51st session, Supp.

No. 10, 30, UN Doc. A/50/10, p. 97 (hereinafter ‘ILC’s Draft Code of Crimes’).

See, e.g., the judgment and the proceedings of the Nuremberg International Military

Tribunal, published in Trials of Major War Criminals before the International Military Tribunal, 42 vols., (Nuremberg, 1946–50). For ICTY and ICTR judgments, see, e.g., Prosecutor v. Furundija, Case No. IT-95-17/1-T, Judgment, 10 December 1998; Tadic Jurisdiction

Appeal Decision, paras. 248–52; Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment,

3 March 2000, para. 71; Prosecutor v. Kunarac, Kovac and Vukovic, Cases Nos. IT-96-23

and IT-96-23/1, Judgment, 22 February 2001; Prosecutor v. Krnojelac, Case No. IT-9725-A, Judgment, 17 September 2003 (Appeals Chamber); Prosecutor v. Stakic, Case No.

IT-97-24-T, Judgment, 31 July 2003; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, paras. 591–2; Prosecutor v. Kayishema and Ruzindana, Case No.

ICTR-95-1-T, Judgment, 21 May 1999, paras. 141–7; Prosecutor v. Musema, Case No. ICTR

96-13-T, Judgment and Sentence, 27 January 2000, paras. 942–51. See also national prosecutions, e.g., Attorney General of Israel v. Eichmann, 36 ILR 277, 299, 304 (Israel Supreme

Court, 1962) and in re Demjanjuk, 612 F. Supp. 544 9N. D. Ohio 1985, aff’d, 776 F2d 571

(6th Cir. 1985).

For a full range of acts that may amount to crimes against humanity, including torture,

enforced disappearance, persecution, see Article 7 ICC Statute, Article 5 ICTY Statute and

Article 3 ICTR Statute (which enumerate fewer acts than the ICC).

See Report of the ILC on the work of its 48th session, above, note 20, p. 96: ‘Murder is a

crime that is clearly understood and well-defined in the national law of every State’.



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with ‘an intention on the part of the accused to kill or inflict serious

injury in reckless disregard of human life’.25 ‘Inhumane acts’, a broad term

found in various international instruments and domestic laws,26 covers

the infliction of severe bodily harm27 and serious ‘cruel treatment’.28

(b) Widespread or systematic One of the distinguishing features of

crimes against humanity is that they are widespread or systematic. While

this threshold has not always been considered necessary,29 developments

have confirmed30 and the vast majority of commentators accept,31 that

under current international law crimes against humanity must take place

in the context of a widespread and systematic attack or campaign.32

25

26



27

28



29

30



31



32



Prosecutor v. Delalic et al., Case IT-96-21-T, Judgment, 16 November 1998, para. 439 and

Prosecutor v. Akayesu (above, note 21), paras. 589–90.

Inhuman(e) acts or treatment are referred to, for instance, in the four Geneva Conventions

of 1949 (Article 50, GC I; Article 51, GC II; Article 130, GC III; Article 147, GC IV); in the

‘International Convention on the Suppression and Punishment of the Crime of Apartheid’,

30 November 1973, GA Res. 3068 (XXVIII); in the ICCPR (Article 7); in the ECHR (Article

4); in the Convention (No. 29) Concerning Forced Labour, adopted by the ILO on 28 June

1930, in the Slavery Convention of 25 September 1926; and in the ICC Statute (Article 7).

Article 18(k) of the ILC’s Draft Code of Crimes mentions severe bodily harm and

mutilation.

The ICTY has stated that: ‘the notions of cruel treatment within the meaning of Article 3

and of inhumane treatment set out in Article 5 of the Statute have the same legal meaning’

(Prosecutor v. Jelisic, Case No. IT-95-10, Judgment, 11 December 1998, para. 52). The Tribunal refers to international standards on human rights, such as the Universal Declaration

on Human Rights of 1948 and the United Nations Covenants of 1966, to interpret ‘other

inhumane acts’, in order ‘to identify a set of basic rights appertaining to human beings,

the infringement of which may amount, depending on the accompanying circumstances,

to a crime against humanity’ (Prosecutor v. Kupreskic et al., Case No. IT-95-16, Judgment,

14 January 2000, para. 566).

This requirement was not included in the Nuremberg Charter, or other post Second World

War legal instruments that provided the basis for prosecution of crimes against humanity.

The jurisprudence of the ICTY, the ICTR Statute, the ICC Statute and national laws

implementing the Statute all confirm this requirement. The matter was uncontroversial

at the ICC conference as noted by D. Robinson, ‘Developments in International Criminal

Law: Defining ‘Crimes against Humanity’ at the Rome Conference’, 93 (1999) AJIL 43 at

47 and in ICTY and ICTR jurisprudence: see Prosecutor v. Akayesu, para. 579; Prosecutor v.

Kayishema and Ruzindana, para. 123 and Prosecutor v. Blaskic (above, note 21), para. 202.

While generally accepted, at least one commentator questions whether the existence of a

widespread or systematic attack is in fact a conditio sine qua non for the general notion of

the crime against humanity: see F. Lattanzi, ‘Crimes against Humanity in the Jurisprudence

of the International Criminal Tribunals for the Former Yugoslavia and Rwanda’, in Fischer,

Kreß and L¨ der (eds.), Prosecution of Crimes, pp. 480 ff.

u

It has been noted that the concept of ‘attack’ in relation to crimes against humanity (unlike

in relation to the use of force, see Chapter 5, para. 5B.2.1.1 below) has no technical meaning

and it has been suggested that another term such as ‘campaign’ could be substituted for the

word ‘attack’. See S. Boelaert-Suominen, ‘Repression of War Crimes through International

Tribunals’, International Institute of Humanitarian Law, 77th Military Course (1999) (on



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It should be noted that the conduct of the particular perpetrator need

not be widespread or systematic. Even a single act by a perpetrator may

constitute a crime against humanity, provided it forms part of a broader

(widespread or systematic) attack or campaign.33 Conversely, the acts in

question may themselves constitute the widespread or systematic attack;

there is no requirement of a separate or pre-existing attack.34 The requirement that the occurrence of crimes be widespread or systematic is disjunctive;35 while either would suffice, ‘in practice, these two criteria will often

be difficult to separate, since a widespread attack targeting a large number

of victims generally relies on some form of planning or organisation’.36

There is no one source that identifies a precise definition of these terms

under customary law, and the ICC ‘Elements document’, although providing detailed elements of the crimes, does not include a definition of the

terms.37 However, they have been considered and applied in numerous

cases, particularly by the ICTY and ICTR. As formulations vary somewhat within the jurisprudence, perhaps reflecting in part the particular factual circumstances to which they were applied, the key aspects of

that jurisprudence are set out below. What is clear is that both the concepts ‘widespread’ and ‘systematic’ are intended to import a considerable

element of seriousness,38 and to ‘exclude isolated or random acts’.39

The ‘widespread’ requirement may be satisfied in a range of ways.40

Most commonly, the term is understood to refer to the scale of the crime.

An earlier formulation of this criterion referred to ‘large scale’ instead of



33



34

35



36

37

38



39

40



file with author). See, however, the more restrictive approach taken to the interpretation

of ‘attack’ in the ICC context, below.

Prosecutor v. Mrskic, Radic and Sljivancanin, Case No. IT-95-13-R61, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 April 1996, para. 3;

Prosecutor v. Tadic, Case No. IT-94-1, Judgment (Trial Chamber), 7 May 1997.

Dixon, ‘Article 7. Crimes Against Humanity’, p. 124.

The ICC Statute (Article 7) requires attacks to be widespread or systematic and attempts to

introduce a conjunctive test were opposed by the Rome conference that drew up the ICC

Statute. See Robinson, ‘Developments in International Criminal Law’, at 47. The ICTY

jurisprudence is unequivocal on the point: see, e.g., the Kordic, Kupreskic, and Blaskic cases

(above, notes 10, 21 and 29). The latter (para. 207) states that for ‘inhumane acts to be

characterised as crimes against humanity, it is sufficient that one of the conditions be met’.

Prosecutor v. Blaskic (above, note 21), para. 207.

Statute and annex on elements of crimes.

See, e.g., the Secretary-General’s report, UN doc. S/25704, para. 48 (cited in Prosecutor

v. Tadic, para. 646, n. 141), that crimes against humanity cover ‘inhumane acts of a very

serious nature’.

Prosecutor v. Tadic, para. 646. See also Dixon, ‘Article 7. Crimes against Humanity’, p. 123.

See, e.g., the Musema and Akayesu cases of the ICTR (above, note 21), which refer to

widespread as covering ‘massive, frequent, large-scale action, carried out collectively with

considerable seriousness and directed against a multiplicity of victims’.



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‘widespread’, defining it as ‘meaning that the acts are directed against a

multiplicity of victims’.41 Following this approach, the ICTY has stated

that ‘widespread . . . refers to the number of victims’,42 and has defined

the term as meaning acts committed on a ‘large scale’ and ‘directed at

a multiplicity of victims’.43 Consistent with this, the term as used in the

ICC Statute has been described as follows: ‘[t]he term widespread requires

large-scale action involving a substantial number of victims’.44

While scale will often involve a series of acts, it need not, as ‘widespread’

refers also to the magnitude of the crime. One single egregious act of

sufficient scale or magnitude may suffice. As the ICTY noted, a crime may

be ‘widespread’ by the ‘cumulative effect of a series of inhumane acts or

the singular effect of an inhumane act of extraordinary magnitude’.45 The

ad hoc tribunals’ jurisprudence therefore also indicates that ‘widespread’

does not necessarily imply geographic spread. This is supported by a

finding in one case that crimes against humanity had been committed

against part of the civilian population of just one town.46

With regard to the requirement of ‘systematicity’, several cases have

held that this can be satisfied by the repeated, continuous nature of the

attack or campaign,47 a ‘pattern’ in its execution48 or the existence of

an underlying plan or policy.49 Consistent with this, it has been noted

that the term ‘systematic’ in the ICC Statute ‘requires a high degree of

orchestration and methodical planning’.50

In one recent decision, the ICTY drew these factors together, noting that

any of the following may provide evidence of a systematic attack: (1) the

existence of a plan or political objective; (2) very large scale or repeated and

continuous inhumane acts; (3) the degree of resources employed, military

or other; (4) the implication of high-level authorities in the establishment

of the methodical plan.51

41

42

44

45

46



47

48

49

50

51



ILC’s Commentaries to the Draft Code of Crimes, Commentary to Article 18(4).

43

Prosecutor v. Tadic, para. 648.

Prosecutor v. Blaskic (above, note 21), para. 206.

Robinson, ‘Developments in International Criminal Law’, at 47.

Prosecutor v. Blaskic (above, note 21), para. 206.

In Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgment (Trial Chamber), 14 December

1999, the ICTY convicted the accused of crimes against humanity that were committed

as part of ‘the attack by the Serbian forces against the non-Serbian population in Brko’

(para. 57).

Prosecutor v. Tadic, para. 648, citing the ILC’s Draft Code of Crimes.

Prosecutor v. Akayesu (above, note 21), para. 580.

Report of the ILC on the work of its 45th session, 51 UNGAOR Supp. (No.10), p. 9, UN

Doc. A/61/10 (1996).

Robinson, ‘Developments in International Criminal Law’, at 67.

Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgment, 26 February 2001,

para. 179.



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(c) Attack against the civilian population The ICC Statute imposes a

higher threshold than found elsewhere in international law, by requiring

that (in addition to being either widespread or systematic) there be an

‘attack’ against the civilian population, involving a ‘course of conduct’

and ‘multiple acts’, carried out pursuant to a ‘policy’.52 In so doing, in

practice the widespread or systematic test becomes less firmly disjunctive

than it otherwise would be. As an innovation,53 it is doubtful whether

this definition would be considered customary international law, and as

such it may not be essential for an assessment of whether the events of

September 11 amount to crimes against humanity.54 Notably, however,

even according to this quite stringent definition of crimes against humanity, there is no requirement that the acts be attributable to a state, but

rather that there be a ‘state or organisational’ policy to commit an attack.55

The ‘policy’ need not be formalised and may be inferred from all the

circumstances.56

Finally, it is well established that crimes against humanity, unlike war

crimes, must be directed against the civilian, as opposed to a military,

population.57 Different considerations may therefore arise as between

52



53



54



55

56



57



Subparagraph 2(a) of Article 7 of the ICC Statute defines ‘attack’ as ‘attack directed against

any civilian population’ and as ‘a course of conduct involving the multiple commission of

acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance

of a State or organizational policy to commit such attack’. This was introduced to satisfy

certain states engaged in the ICC negotiating process (that wanted to see a conjunctive

not a disjunctive standard). See Robinson, ‘Developments in International Criminal Law’,

at 67.

The term ‘attack’ is not used either in Article 5 of the ICTY Statute, nor in Article 6(c)

of the Nuremberg Charter. Although the word appears in Article 3 of the ICTR Statute,

only in Article 7 of the ICC Statute is it defined so as to raise the threshold in the manner

explained in this paragraph.

A recent ICTY judgment to address the issue, the Kordic judgment, does not follow the

ICC definition but expressly rejects elements of that definition. Specifically, it takes the

position that there is no ‘policy’ requirement for crimes against humanity, despite the ICC

formulation set out below. See Kordic judgment (above, note 50), para. 182.

Article 7, ICC Statute, above.

See Report of the Preparatory Commission for the International Criminal Court,

Addendum, Part II, Finalised draft text of the Elements of Crimes, 2 November 2000,

PCNICC/2000/1/Add.2.

The population must be ‘predominantly’, not exclusively, civilian. See, e.g., Naletilic and

Martinovic (Trial Chamber), 31 March 2003, para. 235, and Prosecutor v. Kupreskic et al.,

Case No. IT-95-16 (Trial Chamber), 14 January 2000, para. 549: ‘[T]he presence of those

actively involved in the conflict should not prevent the characterization of a population

as civilian and those actively involved in a resistance movement can qualify as victims of

crimes against humanity.’ For standards applicable to determining the civilian nature of

the population, reference can be made to IHL, see Chapter 6, para. 6A.3.1.



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clearly civilian targets, such as the World Trade Center in New York, and

those that may have a military role, such as the Pentagon.58

(d) Link to armed conflict? Crimes against humanity can be committed

in times of armed conflict or in times of ‘peace’. While crimes against

humanity originated as an extension of war crimes,59 the idea that such

crimes can only be committed in times of war has been unequivocally

rejected through developments since Nuremberg.60



4A.1.1.2 War crimes

Unlike crimes against humanity, war crimes must (as the name suggests)

take place in war, which for legal purposes is more properly referred to

as armed conflict. Once there is an armed conflict, the basic principles of

international humanitarian law, including accountability, must apply.61

Serious violations of international humanitarian law carrying individual

responsibility include crimes relating to the conduct of hostilities, such as

deliberate attacks on civilians or the use of weapons that cause unnecessary

suffering, and crimes against protected persons, such as torture or cruel

treatment carried out against persons taking no part in hostilities, as

discussed more fully in Chapter 6.62

The classification of the September 11 attacks as war crimes depends

on them constituting the initiation of, or taking place in the context of,

58



59



60



61



62



Questions may arise as to whether these were components of one (predominantly civilian)

attack, or were separate attacks. In either case the ‘means’ of attack – using civilian aircraft

as bombs – itself involved targeting civilians.

Bassiouni, ‘Crimes against Humanity’, p. 524. Note that the Nuremberg Charter (Charter of

the International Military Tribunal, Annex to the London Agreement for the Prosecution

and Punishment of the Major War Criminals of the European Axis of 8 August 1945

(reprinted in 39 (1945) AJIL Supplement 258)) and Charter of the Tokyo Tribunal (Charter

of the International Military Tribunal for the Far East, 19 January 1946) contained such a

link.

Neither the ICTR nor the ICC Statute contain this element and although the ICTY Statute

does, as the Appeals Chamber has noted, this is merely a jurisdictional limitation on

the tribunal, rather than a requirement of crimes against humanity under international

law.

Long-established principles, reflected in the Martens Clause 1899 (Preamble to the Hague

Convention Respecting The Laws and Customs of War on Land), provide that certain basic

standards of conduct apply irrespective of the nature of the conflict (‘these provisions, the

wording of which has been inspired by the desire to diminish the evils of war so far as

military necessities permit, are destined to serve as general rules of conduct for belligerents

in their relations with each other and with populations’).

See also Article 8, ICC Statute, as the most comprehensive list of war crimes, and, e.g.,

Articles 2 and 3 ICTY Statute.



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an armed conflict. If they do, the rules of international humanitarian

law apply to those acts – which has consequences for rules on permissible targeting and the detention of persons in connection with an armed

conflict63 – and serious violations of those rules may be prosecuted as war

crimes. As explained more fully in Chapter 6, however, it is doubtful that

September 11 can properly be understood as armed conflict, which has

been defined as:

resort to armed force between States or protracted armed violence between

governmental authorities and organized armed groups or between such

groups within a State.64



While this definition was thought to be broad-reaching,65 the events of

September 11 do not fit readily into either category of conflict, absent

established state responsibility66 rendering it an international armed

conflict67 and in circumstances where al-Qaeda’s structure, organisation

63



64

65



66



67



If September 11 is considered an armed conflict, IHL considers legitimate the targeting of

military objectives. The Pentagon attack is likely to fall into this category of legitimate target

(though note it would still fall foul of the law in respect of the manner of its execution –

see Chapter 6, para. 6A.3.2 below). A further consequence is that persons suspected of

involvement in September 11 would automatically be detained in connection with an

armed conflict and entitled to the treatment of detainees under IHL.

Tadic Jurisdiction Appeal Decision, para. 70.

This definition by the ICTY Appeals Chamber was thought innovative and sufficiently

broad to cater for the full range of scenarios (given that the ICTY was addressing a conflict

that had national and international components), thus ensuring the broadest application of

international humanitarian law. See S. Boelaert-Suominen, ‘The Yugoslavia Tribunal and

the Common Core of International Humanitarian Law applicable to All Armed Conflict’,

(2000) 13 LJIL 619 at 630. In fact it appears to exclude conflict between organised groups

and foreign states.

This would have to be established according to the ‘effective or overall control’ test discussed at Chapter 3, para. 3.1.1.1 – then September 11 may amount to the initiation of

international armed conflict between states. If so, the acts of violence may amount to

grave breaches of the Geneva Conventions, which consist of certain very serious crimes,

including ‘wilful killing’, committed in international armed conflict against protected

persons such as civilians. See separate discussion on state responsibility, including Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America), Merits, ICJ Reports 1986 (hereinafter ‘Nicaragua case’), p. 14; Prosecutor v.

Delalic et al., Case No. IT-96-21-A, Judgment (ICTY Appeals Chamber), 20 February

2001.

The consequences would include that the obligations incumbent on all states in respect of

grave breaches – to seek out those responsible for such breaches – would be triggered. GC I,

Article 49 (duty to search for and prosecute) and Article 50 (recognition as a crime); GC

II, Article 50 (duty to search for and prosecute) and Article 51 (recognition as a crime);

GC III, Article 129 (duty to search for and prosecute) and Article 130 (recognition as a

crime); GC IV, Article 146 (duty to search for and prosecute) and Article 147 (recognition

as a crime). See M. Scharf, ‘Application of Treaty Based Universal Jurisdiction to Nationals

of Non-Party States’, 35 (2001) New England Law Review 363.



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and modus operandi suggest it may lack the characteristics of an ‘organised armed group’ capable of constituting a party to a non-international

armed conflict.68 It may be that the events of September 11 herald a new

hybrid type of conflict – between organised groups and foreign states – that

IHL will evolve to encompass,69 but it is doubtful that an armed conflict

arose on September 11 as a matter of law at the time of those attacks.70

For the purpose of accountability for September 11, navigating these

relatively unchartered waters may, in any event, not be critical, to the

extent that other crimes such as crimes against humanity (defined above)

or crimes under domestic law (below), were committed on September 11

and an appropriate forum has jurisdiction.71

By contrast to the September 11 attacks, there is little dispute that armed

conflict arose thereafter, notably in Afghanistan on 7 October 2001 and

in Iraq on 20 March 2003;72 the conduct of both parties to those conflicts

falls to be considered against IHL and serious breaches may constitute

war crimes.



4A.1.1.3 Aggression

International law provides growing authority for considering aggression

to constitute a crime under international law. Aggression was defined

as a ‘crime against peace’ under the London Agreement establishing

68



69



70



71



72



See Chapter 6 on the nature of parties to a non-international armed conflict. A further issue is that armed conflict must be distinguished from a lesser level of sporadic

violence.

In the face of the reality that most conflicts are internal, and that distinguishing internal

from international conflict is often difficult, international humanitarian law has developed

from focusing almost exclusively on international conflict to addressing war crimes in

internal conflict. The ICTY has been instrumental in this, by invoking a purposive rather

than formalistic interpretation of law so as ‘not to leave unpunished any person guilty of

any such serious violation, whatever the context within which it may have been committed’

(Tadic Jurisdiction Appeal Decision, para. 92). A similar process may need to evolve in

relation to this ‘other’ type of conflict.

It is also unclear how any such development in the law might unfold in the future, e.g.,

whether such armed violence would have to be ‘protracted’ – as set down by the ICTY

to distinguish internal conflicts from civil unrest – in order to distinguish conflict from

isolated attack. On the meaning of ‘protracted’ as opposed to ‘sustained’ conflict, see

Boelaert-Suominen, ‘Yugoslavia Tribunal’, at 13.

As more states have universal jurisdiction over war crimes than crimes against humanity,

so the issue could become relevant for prosecution in certain states. However, as noted

below, jurisdiction over other international crimes, including crimes against humanity,

can be conferred ex post facto, provided the nullum crimen sine lege principle is respected.

See e.g., ‘Timeline Irak: A Chronology of Key Events’, BBC News, 4 March 2004

(updated continually), at http://news.bbc.co.uk/1/hi/world/middle east/country profiles/

737483.stm.



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the Nuremberg International Military Tribunal73 and described by that

tribunal as ‘the supreme international crime’.74 The status of aggression as

a crime has been reiterated by the General Assembly,75 the International

Law Commission76 and, most recently – at least to a degree – in the ICC

Statute (which allows for future ICC jurisdiction over aggression after an

acceptable definition of the crime is agreed upon)77 and subsequent ICC

negotiations.78

For ICC purposes, the proposed definition provides that aggression

is committed when a person ‘being in a position effectively to exercise

control over or to direct the political or military action of a State . . .

intentionally and knowingly orders or participates actively in the

73



74



75



76



77



78



See Article 6 of the Charter of the Nuremberg Tribunal: ‘The following acts, or any of

them, are crimes coming within the jurisdiction of the Tribunal for which there shall

be international responsibility: (a) Crimes against Peace: namely 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.’

‘To initiate a war of aggression, is not only an international crime; it is the supreme

international crime differing only from other war crimes in that it contains within itself

the accumulated evil of the whole.’ Judgment of the Nuremberg International Military

Tribunal, 30 September 1946, reprinted in The Trial of German Major War Criminals before

the International Military Tribunal, vol. 20 (Nuremberg, 1948), p. 411.

The ‘Declaration on Principles of International Law concerning Friendly Relations and

Cooperation among States in Accordance with the Charter of the United Nations’ (GA Res.

2625 (XXV), adopted by consensus on 24 October 1970) provides in Article 5(2), ‘[a] war

of aggression is a crime against international peace. Aggression gives rise to international

responsibility’. See also GA Res. 3314 (XXIX), ‘Definition of Aggression’, 14 December

1974, UN Doc. A/RES/3314 (XXIX). The ‘principles of international law recognized by

the Charter of the Nuremburg Tribunal and the judgment of the Tribunal’ were also

‘affirmed’ by the General Assembly in Resolution 95(I), ‘Affirmation of the Principles of

International Law recognised by the Charter of the Nuremberg Tribunal’, 11 December

1946.

Article 16 of the ILC’s Draft Code of Crimes, dealing with ‘Crime of Aggression’, provided:

‘An individual who, as a leader or organizer, actively participates in, or orders the planning,

preparation, initiation or waging of aggression by a State shall be responsible for the crime

of aggression’. See also the ILC’s Commentary to Article 16 of the Draft Code, in Report

of the International Law Commission on the work of its 48th session, 6 May–26 July 1996,

GAOR Supp. No. 10, UN Doc. A/51/10, at p. 83.

See Article 5(2), ICC Statute: ‘The Court shall exercise jurisdiction over the crime of

aggression once a provision is adopted in accordance with Articles 121 and 123 defining

the crime and setting out the conditions under which the Court shall exercise jurisdiction

with respect to this crime. Such a provision shall be consistent with the relevant provisions

of the Charter of the United Nations.’

Negotiations related to the definition of aggression have proceeded on the understanding that it constitutes a crime under international law. The documents produced by

state parties to the ICC Statute and by the Preparatory Commission are available at

http://www.un.org/law/icc/documents/aggression/aggressiondocs.htm.



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planning, preparation, initiation or execution of an act of aggression

which, by its character, gravity and scale, constitutes a flagrant violation of the Charter of the United Nations’.79 An ‘act of aggression’ is in

turn defined as one of the non-exhaustive list of acts included in the definition of aggression presented by the General Assembly in Resolution

3314 (XXIX) of 1974, involving the unlawful use of force, for example to

attack, invade, occupy militarily or blockade another state.80

A criminal act of aggression is therefore an unlawful use of force of a

certain ‘character, gravity and scale’81 by virtue of which it ‘constitutes a

flagrant violation of the Charter of the United Nations’.82 It necessarily

involves force by or on behalf of a state, as opposed to non-state actors, although states may act directly, or indirectly through irregulars or others.83

79



80



81



82



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This basic definition of the crime of aggression has been proposed by the Preparatory

Commission for the ICC in 2002. See the ‘Discussion Paper on the Definition of the

Crime of Aggression and Conditions for the Exercise of Jurisdiction’ presented by the

Coordinator of the Working Group on the Crime of Aggression, in Report of the Preparatory Commission for the International Criminal Court – Part II, 24 July 2002, UN Doc.

PCNICC/2002/2/Add.2.

See GA Res. 3314 (XXIX), above, note 73, providing that ‘[a]ggression is the use of armed

force by a State against the sovereignty, territorial integrity or political independence of

another State, or in any other manner inconsistent with the Charter of the United Nations,

as set out in this Definition’ (Article 1) and that ‘[a]ny of the following acts, regardless of

a declaration of war, shall, subject to and in accordance with the provisions of Article 2,

qualify as an act of aggression . . . (a) The invasion or attack by the armed forces of a State of

the territory of another State, or any military occupation, however temporary, resulting from

such invasion or attack, or any annexation by the use of force of the territory of another State

or part thereof; (b) Bombardment by the armed forces of a State against the territory of

another State or the use of any weapons by a State against the territory of another State

. . . ; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or

mercenaries, which carry out acts of armed force against another State of such gravity

as to amount to the acts listed above, or its substantial involvement therein’ (Article 3)

(emphasis added).

See Article 2, GA Res. 3314 (XXIX): ‘The first use of armed force by a state in contravention

of the Charter shall constitute prima facie evidence of an act of aggression although the

Security Council may, in conformity with the Charter, conclude that a determination that

an act of aggression has been committed would not be justified in the light of other relevant

circumstances, including the fact that the acts concerned or their consequences are not of

a sufficient gravity’.

See the proposal concerning the ‘Elements of the crime of aggression (as defined in the

Statute of the International Criminal Court’, para. 7), contained in the ‘Discussion paper’ by

the Coordinator of the Working Group on the Crime of Aggression. C. Gray, International

Law and the Use of Force (Oxford, 2000), at p. 134, notes that the fact that not every

unlawful use of force amounts to the crime of aggression was reflected to some degree in

Article 2 of GA Res. 3314 (XXIX), the formulation of which ‘reflects the general support

for a distinction between frontier incidents and aggression’.

GA Res. 3314 (XXIX), Article 3(g).